UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY -bJf ** THE PROBATE LAW AND PRACTICE AND THE LAWS OF SUCCESSION OF THE STATE OF INDIANA Being a Complete and Systematic Treatise on the Laws of the State Relating to DESCENT, DISTRIBUTION, PARTITION, APPORTIONMENT OF PROPERTY, REAL AND PERSONAL, AND ON SUCCES- SIONS, BOTH TESTATE AND INTESTATE, TO- GETHER WITH THE POWERS AND DUTIES OF EXECUTORS, ADMINISTRATORS, GUAR- DIANS, AND COMMISSIONERS WITH STANDARD LIFE AND ANNUITY TABLES Third Edition Revised and Enlarged BY GEORGE A. HENRY OF THE MARION BAR Including a Complete Table of Forms, Orders and Entries, Revised by MERLE N. A. WALKER FORMERLY PROBATE JUDGE FOR MARION COUNTY IN TWO VOLUMES Volume I INDIANAPOLIS THE BOBBS-MERRILL COMPANY PUBLISHERS T Copyright 1912 BY THE BOBBS-MERRILL COMPANY PREFACE TO THIRD EDITION. It is pleasing to an author to know that the studious care he has given to a work is appreciated by those for whom it is writ- ten, and the kindly reception of the former editions of this book by the courts and bar of the state has, indeed, been gratifying to the writer, and furnishes sufficient justification for the publica- tion of the present edition. The sixteen years that have elapsed since the publication of the second edition furnishes another good reason for the present re- vision. During that time many cases have been decided upon the various topics embraced in the work, and the legislature has added many new statutes and amendments to old ones. The reported decisions to the date of this publication have been carefully exam- ined and the conclusions of the courts in those decisions wrought into the text of the present edition. The changes made in the statute law have been noted and set forth in their proper place. Copious reference has been made to the decisions and statutes of other states, and to English and foreign cases, as well as to vari- ous able text-books upon the subjects involved. The work has been carefully revised and enlarged by the addi- tion of much new matter. And while the general structure of the work is unchanged, there has been a rearrangement of the sec- tions. Many new sections have been added, others rewritten, and some consolidated. Every part has been gone over with conscien- tious care, and there is scarcely a section, in which, either in the text or the notes, additions and changes have not been made. The title and chapter arrangement of the second edition has been re- tained, except as to that part relating to Voluntary Assignments. The Federal bankruptcy law is of little practical importance to the subject and has been omitted from the present work. There has been no effort to cite all the decided cases, the author preferring to cite a few cases directly to the point rather than iii iv PREFACE. cumber the work with a vast Hst of citations. Parallel references are given to the official state reports, also the Reporter system, the American Decisions, Reports and State Reports and to the L. R. A. The Indiana Supreme Court Reports are cited from the ist Blackford to the 174th Indiana inclusive, the Indiana Appellate Court Reports from the ist volume to the 46th inclusive, and in addition all Indiana cases reported in the Northeastern Reporter to the date of publication are cited. The statute used is Burns' R. S. 1908, and such changes as were made by the legislature in 1909 and 191 1 have been noted. The forms in the Second Edition having stood the test of six- teen years' use have been retained and many others have been added, making a very complete list, which includes all kinds of entries, orders and decrees necessary in proceedings under any of the subjects of which the book treats. In conclusion the author deems it fitting to express to the bench and bar of the state his appreciation of the favorable judg- ment already pronounced by them upon his previous work, and to hope that such judgment will not be modified or reversed after an examination of the present edition. G. A. HENRY. Marion, Indiana, September 2, 1912. TABLE OF CONTENTS OF VOLUME ONE TITLE ONE SETTLEMENT OF ESTATES CHAPTER I. JURISDICTION. § 1. What is jurisdiction. 2. What courts have jurisdiction. 3. Concurrent jurisdiction. 4. Transfer of jurisdiction. 5. Marion county probate court. 6. To what jurisdiction is limited. 7. Equitable jurisdiction of probate courts. 8. Jurisdiction as affected by dom- icile. 9. Jurisdiction as afifected by assets. 10. Jurisdiction when judge inter- ested in estate. § 11. Power of judges in vacation. 12. Powers of the clerk in vacation. 13. Probate courts are courts of rec- ord. 14. What books to be kept. 15. Jurisdiction of justices of the peace. 16. Probate commissioners. 17. Oath and term of office. 18. Powers and duties. 19. Rules and their enforcement. 20. Suspension of commissioner. CHAPTER 11. LETTERS OF ADMINISTRATION. § 21. Generally. 22. The right to letters. 23. Time when letters issue. 24. Settlement without administra- tion. 24a. No administration — Heirs' rights. 25. Where granted. § 26. Statute must be complied with. 27. Meaning of assets. 28. Assets in different jurisdictions. 29. Ancillary administration. 30. Powers and duties of ancillary administrators. 31. To whom letters shall be granted. VI TABLE OF CONTENTS. § 2)2. Same — Statute mandatory. § 39. 2)Z. Void and voidable letters. 34. Who is to be preferred. 40. 35. Right of husband or wife. 41. 2i6. The right of others. 42. 37. The right in the same degree. 43. 38. Who not entitled to letters. 44. Waiver or renunciation of the right. Miscellaneous. Form of petition. Letters as evidence. Notice of appointment. Proof of notice. CHAPTER III. LETTERS TESTAMENTARY. i 45. When issued and to whom. 46. Who not competent to serve as executors. 47. Who shall be named. 48. Renunciation of right. 49. Letters with the will annexed. § 50. Foreign executors to have pref- erence. 5L Executor of executor. 52. Executor's power before letters issue. 53. Similarity of powers. CHAPTER IV. EXECUTORS AND ADMINISTRATORS. i 54. Different kinds. 55. Special administrator where is delay. 56. Special administrator in contest of will. 57. Powers of special administrator. 58. Administrator of absentee. 59. Same — Powers of administrator. 60. Same — Presumption of death. 61. Administrator dc bonis non. 62. Same — There must be a vacancy. 63. Same — There must be assets. 64. Same — Time within which ap- pointment may be made. 65. Same — Devastavit of former ad- ministrator. § 66. Same — Right to sue. 67. Same — Admissions. Same — Appointment after final settlement. Executor de son tort. Same — The statute. Same — Statute construed. 72. Same — Statute construed. 72). Same — Intermeddlers' rights. Same — Rights of widow. Joint executors and administra- tors. Same — Joint liability, etc. Same — Actions by and against. 78. Administrators in case of wrongful death. 68. 69. 70. 71. 74. 75. 76. 77. TABLE OF CONTENTS. CHAPTER V. Vll FOREIGN EXECUTORS AND ADMINISTRATORS. § 19. Defining foreign administration. 80. Rights of foreign executors. 81. Right to bring suits. 82. Same subject. ^2). Right and title to property. § 84. Allowance of claim in foreign jurisdiction. 85. Same — Effect of on real estate. 86. Right to sell real estate. 87. Same continued. 88. Same — Bond required. CHAPTER VI. BONDS OF EXECUTORS AND ADMINISTRATORS. 89. The subject generally. 90. What fund primarily secured. 91. First or general bond. 92. What this bond covers. 93. Separate bonds. 94. To whom bonds payable. 95. Bond valid, when. 96. When additional bond may be ordered. 97. Liability of sureties ; effect of new bond. 98. When principal liable in some other capacity. § 99. Bonding companies as sureties. 100. Bond required on application to sell real estate. 101. Such bond a prerequisite to sale. 102. Approval and custody of bonds. 103. New bond required on destruc- tion of old. 104. Validity not affected. 105. Release of sureties. 106. Statute remedial. 107. Bonds of foreign executors, etc. CHAPTER Vn. LIABILITY OF ADMINISTRATORS, ETC. SUITS ON BONDS. 108. Personal liability. 109. Liability for conversion. 110. Liability for waste. 111. To avoid liability officer must be diligent. 112. Suits on bonds — For what causes. 113. Same — Averments and evi- dence. 114. Same — Duty as to surpfus. § 115. By whom suits may be brought. 116. Same — Continued. 117. Defenses to suits. 118. Same — Right to counterclaim. 119. Measure of damages in suit on bond. 120. Judgment without relief or stay of execution. Vlll TABLE OF CONTENTS. CHAPTER VIII. REVOCATION OF LETTERS AND REMOVAL. § 121. Letters not subject to collateral § 132. attack. 122. Authority how terminated. 133. 123. Right of resignation. 134. 124. Who may apply and for what causes. 135. 125. Same — Statute construed. 136. 126. Where letters have been issued out of statutory order. 137. 127. Causes for removal — Neglect to 138. file inventory. 128. Same — Drunkenness and im- 139. becility. 140. 129. Same — For failure to give 141. bond, or to account. 130. Same — Non-residence. 142. 131. Same — Effect of marriage. Application for removal — No- tice, etc. Same — Notice by publication. Who may move for revocation or removal. Defenses to application. Hearing on application — No jury. Same continued. The hearing a summary pro- ceeding — No change of venue. Judgment, costs, appeals, etc. Effect of removal. Intermeddling and embezzle- ment after removal. Acts legalized. CHAPTER IX. DISPOSITION OF PERSONAL PROPERTY. 143. What are assets. 144. What property charged. 145. Same — As to emblements. 146. Same — As to fixtures. 147. Same — As to rents. 148. Same — As to interest and profits. 149. Same — As to choses in action, money, stocks, etc. 150. Same — Property fraudulently conveyed. 151. Mortgages as personal prop- erty. 152. Same — Common-law rule. 153. Contracts in consideration of marriage. 154. Title to and power over per- sonal property. § 155. Same — As to promissory notes, debts, etc. 156. Same — Right to sue. 157. The inventory and appraise- ment. 158. Inventory, statutory require- ments. 159. What the inventory should in- clude. 160. When and by whom inventory must be filed. 161. Separate and additional inven- tories. 162. What shall be omitted. 163. Appraisers, their appointment and duties. 164. The widow's selection. 165. Same — Statute construed. TABLE OF CONTENTS. IX 166. Same — Effect of a will. 167. Same — Widow may maintain action for. 168. Return of the inventory. 169. Examination and approval. 170. Sale of personal property — When made. 171. Postponement of the sale. 172. When notice of sale required. 173. Terms of public sale. 174. Sale bills and sale clerk. 175. Personal property at private sale. 176. Such sale must comply with the order. § 177. Report of private sale. 178. When sale may be vacated. 179. Sale of corporation stock. 180. Sale of written contracts. 181. Sale of contracts for land. 182. Same — Assignment, sale of part, bond. 183. Disposition of worthless sale notes. 184. Same — Who may sue, etc. 185. Disposition of desperate debts. 186. Collection of debts and de- mands. 187. Persons concealing goods. 188. Executor may administer oaths. CHAPTER X. DISPOSITION OF REAL PROPERTY. 189. Real estate liable for debts. § 205. 190. Possession of real estate. 206. 191. Sale without an order of court. 207. 192. Sales under a will— Statutes. 208. 193. Same — When will does not con- 209. fer power. 194. Exercise of power by one of 210. two executors. 211. 195. Sale to pay debts, when al- 212. lowed. 196. Same — Marshaling assets. 213. 197. Conveyance by heir or devisee, 214. effect of. 215. 198. Alay redeem land, may lease 216. when. 217. 199. What real estate liable to sale. 218. 200. Property fraudulently conveyed 219. by decedent. 220. 201. Same — Suit by creditor. 202. Same — When suit must be 221. brought. 222. 203. Who may apply to sell land, and when. 223. 204. Requisites of petition — The 224, statute. 225, Who should be made parties. What issues petition tenders. The proceeding sui generis. Petition by creditor. What is necessary to jurisdic- tion. What notice required. When notice may be waived. Minor defendants, guardian ad litem. Hearing on the petition. The order of sale. Order carried out by successor. Inventory and appraisement. Bond for sale of real estate. The interest of the widow. Same — The statute. Same — When the interest may be sold. Same — Sale to pay liens. Same — Setting off the widow's interest. Same — Right of election. The interest of the widower. As to liens on the real estate. TABLE OF CONTENTS. !226. ^Mortgages on the real estate. 227. Mortgagee's right to file claim. 228. Proceedings to enforce lien suspended. 229. Same — Statute construed. 230. Bond to secure payment of lien after sale. 231. As to mortgage by an heir. 232. The sale, how made, etc. 233. Sale may be on credit. 234. Notice of the sale to be given. 235. Representations by an adminis- trator or executor. 236. Purchase by, executor or ad- ministrator. 237. Such sale void or voidable, limitation, resale, etc. § 238. Report and confirmation of sale. 239. The deed and its approval. 240. When a resale may be had. 241. Setting sale aside on account of defects. 242. Same— Time within which ac- tion must be brought. 243. Same — When heirs estopped. 244. Mortgage and lease of real es- tate. 245. Giving bond to prevent sale, etc. 246. Preventing sale and barring claims. 247. Conveyance upon title bond, the statute. 248. Same — Statute construed. 249. Legalizing act. CHAPTER XL CLAIMS AGAINST ESTATES. 250. Common-law liability of exec- § 264. utors and administrators. 251. Lien of the decedent's debts. 265. 252. The order in which assets shall be applied. 266. 253. Necessity of notice of ap- 267. pointment. 268. 254. Time and method of filing claims. 269. 255. Claim must be verified by affi- 270. davit. 256. What claims must be filed. 271. 257. Claims not due must be filed. 258. When claims shall be pre- 272. sented. 259. Claims must be filed before 273. final settlement. 260. The statement of the claim. 274. 261. When estate liable on cove- 275. nants. 276. 262. Contingent claims. 277. 263. Charging estate with services 278. rendered decedent. Agreements to leave property by will. Disposition of claims founded on joint contracts. When decedent is co-surety. Duty of clerk as to claims, etc. Duty of executor or adminis- trator as to claims. Same — Continued. Effect of allowance by execu- tor or administrator. Claim of executor or adminis- trator — How allowed. Interested parties may resist allowance. Proceedings when claim not al- lowed. Practice on transfer of claim. Pleadings on transfer of claim. Pleading special defenses. Set-off and counter-claim. Claim based on note — Attorney fees. TABLE OF CONTENTS. XI §279. Widow and heirs not neces- sary parties. 280. The trial of claims. 281. Liability of executors and ad- ministrators on their prom- ises. §282. Form and effect of judgment rendered on claim. 283. No execution on judgment of allowance. 284. Proceedings after judgment. CHAPTER XII. PAYMENT OF CLAIMS AND EXPENSES. § 285. The payment of claims and lia- bilities. 286. Order of priority. 287. The expenses of administra- tion. 288. Debts due to the United States. 289. Payment of funeral expenses. 290. Expenses of last sickness. 291. The pajment of taxes. §292. The widow's allowance. 293. Payment of judgments, mort- gages and other liens. 294. Payment by order. 295. Penalty for delaying payment. 296. Interest on claims. 297. Payment of money into court 297a. Payment to heirs, etc., before final settlement. CHAPTER XIII. ACCOUNTING AND SETTLEMENT. 298. Power to compel accounts. 299. What must be accounted for. 300. When liable for money depos- ited. 301. Not chargeable with loss by casualty, etc. 302. Liability of executor, etc., for interest. 303. The first account, what the statute requires. 304. Notice of a hearing on the ac- count. 305. The hearing and order. 306. Accounts by joint executors and administrators. 307. Filing further accounts. 308. Efifect of approval of current report. 309. Vouchers must be filed. 310. When the court may order final settlement. 311. Allowance for compensation for services. 312. Compensation allowed by will. 313. Allowance for attorney fees. 314. Settlement on resignation, re- moval, etc. 315. The account in final settlement. 316. The time when final account shall be filed. 317. No final settlement with claim pending. Xll TABLE OF CONTENTS. § 318. Notice of final settlement. 319. Contesting the report. 320. The order of final settlement. 321. Re-opening or setting aside final settlements. 322. Same — Party must show inter- est. 323. Same — For what causes. 324. Same — Limitation to action. 325. Same — Only set aside in direct proceeding. 325a. Accounting by trustees of be- nevolent devise. CHAPTER XIV. DISTRIBUTION PAYMENT OF LEGACIES DISCHARGE. i 326. Closing the administration. 327. What shall be distributed. 328. When distribution shall be made. 329. Distribution to the widow. 330. The rights of heirs or dis- tributees. 331. Right of set-off to legacies and distributive shares. 332. The rules of distribution. 333. Distribution to the widower. 334. Kindred of the half-blood. 335. Illegitimates, and adopted chil- dren. 336. Charging advancements. 337. Advancements, how reckoned, the statute. 338. Advancements in testate es- tates. 339. As to the order of distribu- tion. 340. .^s to shares of minors with- out guardian. § 341. Court may order bond to re- fund. 342. Payment before final settle- ment. 343. The payment of legacies. 344. Legatee's title — Executor's con- sent. 345. As to void and lapsed legacies. 346. Different kinds of legacies. 347. Out of what fund legacies to be paid. 348. Interest on legacies. 349. Ademption and satisfaction of legacies. 350. Legacy to creditor. 351. When legatee a minor — Exec- utor cannot purchase. 352. The order of discharge. 353. Distribution of real estate of unknown heirs. 354. Same — Notice — Appearance — Disposition of money, etc. 355. Same — A species of escheat. CHAPTER XV. ESTATES UNDER FIVE HUNDRED DOLLARS. § 356. Dispensing with administra- § 358. Petition, inventory and ap- tion. praisement. 357. Policy of the statute. 359. Notice, hearing and decree. TABLE OF CONTENTS. Xlll § 360. Contest by creditors, reap- § 362. Lien of chattel mortgage, praisement. 363. Lien of judgment, etc. 36L Issuing of certificate — Its ef- 364. Suits by widow, feet. CHAPTER XVI. SETTLEMENT OF INSOLVENT ESTATES. I 365. As to insolvent estates. 366. The petition and its contents. 367. Order and notice. 368. Effect of order on claims dur- ing year. 369. Partial settlement. 370. Payment of liens. 371. As to set-off against liens. 372. Sale of real estate — Petition pending. § 373. Filing petition, etc. 374. As to liens on real estate. 375. Claim, filed after partial dis- tribution. 376. Final settlement — Uncollected assets. 377. Same-^Claim pending. 378. Same — Claim of surety. 379. Notice of final settlement. CHAPTER XVH. LIABILITY OF HEIRS, DEVISEES AND DISTRIBUTEES. § 380. Common-law liability. 381. When liable and to whom. 382. An administration necessary. 383. When suit must be brought, and how. 384. Damages for breach of cove- nant. § 385. To what extent heir, etc., liable, 386. As to parties to the action. 387. Judgment or decree and its en- forcement. 388. When judgment may be an-' nulled. CHAPTER XVni. SUITS BY AND AGAINST EXECUTORS AND ADMINISTRATORS. § 389. Suits against. 390. Same — On individual promise. 391. Liability for torts. 392. Power to maintain suits. 393. Right to sue on notes, mort- gages, etc. 394. Right to sue on covenants. § 395. Evidence of power to sue— Pleadings, copy of letters, etc. 396. Survival of actions. 397. Limitation of actions. 398. Joinder of causes — Right of third person to sue. XIV TABLE OF CONTENTS. § 399. Actions for injuries resulting in death. 400. Same — Administrator's right. 401. Construing statutes together. 402. The damages, and how meas- ured. 403. Distribution of the damages. 404. Right of set-off. § 405. Judgments against executors, etc, 406. Proceedings after judgment. 407. Effect of death of party to judgment. 408. Proceedings — How long de- layed. 409. Revivor of judgment. 410. Liability for costs. CHAPTER XIX. COMPETENCY OF WITNESSES. r411. The common-law rule as to parties. 412. The rule in Indiana. 413. When executor or administra- tor a party. 414. Same — Adverse interest. 415. In case of joint interest. 416. As to admissions and declara- tions. 417. Cases in which statute does not apply. 418. Competency in contest of wills. 419. When heirs or devisees are parties. § 420. The statutes construed to- gether. 421. As to testimony of decedent's agent. 422. When assignor or grantee ex- cluded. 423. When executors and adminis- trators are defendants, 424. Adverse party required to tes- tify, 425. Unjust claim — Claimant's testi- mony. CHAPTER XX. APPEALS IN PROBATE MATTERS. i 426. Right of appeal wholly statu- tory. 427. The purpose of the statute. 428. When appeals should be taken under the civil code. 429. To what court appeals must be taken. § 430. As to parties to appeal. 431. Time for perfecting appeals. 432. Appeals in certain cases. 433. When an appeal bond must be filed. 434. Right of appeal without bond. 435. Review of judgment. TABLE OF CONTENTS. CHAPTER XXL XV LIABILITY OF ESTATES FOR TAXES. 436. Liability for decedent's taxes. 437. Where should be assessed, etc. 438. Estates in hands of guardians, etc. 439. Location of the property. 440. Statement, interrogatories, etc. § 44L Payment of taxes. 442. When taxes should be paid. 443. Sale of property for taxes. 444. Redemption from sale. 445. Proceedings when purchaser dies. CHAPTER XXn. SURVIVING PARTNERS. 446. The partnership dissolved by death. 447. Rights of the surviving part- ner. 448. The liabilities and powers of a surviving partner. 449. Right to make assignment for the benefit of creditors. 450. As against personal representa- tive of deceased partner. 45L Rights of the personal repre- sentative. 452. The survivor's power of dis- position. 453. Survivor's right to purchase. 454. Effect on partnership real es- tate. § 455. Right of partnership creditors. 456. Actions by and against surviv- ing partner. 457. As to heirs of a deceased part- ner. 458. Statutory administration. 459. Required to file inventory and appraisement. 460. Must file list of liabilities, affi- davits, etc. 461. Bond and sureties. 462. Settlement and distribution. 463. Compensation to the surviving partner. 464. When receiver may be ap- pointed. TITLE TWO WILLS CHAPTER XXni. EXECUTION, REVOCATION AND PROBATE. I 465. The subject generally. 466. Who may make a will. 467. Power of married woman to make a will. 468. Persons of unsound mind. 469. Infants and aliens. 470. Joint and mutual wills. 47L Suggestions for drawing wills. XVI TABLE OF CONTENTS. 472. Objects of testator's bounty. 473. Who may be a beneficiary. 474. Bequest or devise to charitable uses. 475. Execution and attestation of will. 476. Nuncupative w^ills. 477. The statute construed. 478. Such wills by soldiers and sail- ors. 479. Instruments of a testamentary character. 480. Revocation of wills. 481. Revocation by birth of a child. 482. Effect of child's death. 483. When marriage a revocation. 484. What is not deemed a revoca- tion. 485. Effect of a partial divesting of title. § 486. Republication of wills. 487. Probate of wills. 488. Objections to probate. 489. What must be probated. 490. When probated. 491. Custody and production of the will. Proof of the will. Proof by depositions. 494. Preservation and effect of proof. 495. Probating wills of absentees. 496. The effect of probate. 497. Certificate of probate. 498. Record and probate of foreign wills. 499. Lost wills, how established. 500. The degree of proof required. 501. Decree to be recorded. 492. 493. CHAPTER XXIV. CONSTRUCTION OF WILLS. 502. General rules in regard to con- struction, etc. 503. Rules as to intention. 504. Rules as to repugnancy. 505. Rules for supplying words. 506. As to extrinsic evidence. 507. As to parol evidence. 508. Miscellaneous rules. 509. Rule as to personal property. 510. As to precatory words. 511. Declarations of the testator. 512. Terms descriptive of classes. 513. Disinheritance of heirs. ! 514. Passes the entire estate, when. 515. Conditions in restraint of mar- riage. 516. When a devise shall not lapse. 517. A devise of rents and profits. 518. The rule in Shelley's case. 519. Exception to the rule. 520. The estate liable for debts. 521. When legacies a charge. 522. Rights of husband and wife. 523. When devise passes fee simple. 524. Vested estates — Remainders. CHAPTER XXV. CONTEST OF WILLS. 525. Who may contest. 526. Where contested. § 527. Contest of will after its pro- bate. TABLE OF CONTENTS. XVll ! 528. As to undue influence. 529. As to unsoundness of mind. 530. The statute only cumulative. 531. Who may sue to construe will. 532. Pleading and practice in ac- tions to contest. 533. When contestant estopped. 534. Time within which action must be brought. 535. Contestor must file bond. § 536. Notice and hearing of action. 537. Trial — May be by jury. 538. The evidence. 539. Proof of declaration. 540. Opinion evidence. 541. Contest of foreign wills. 542. Decree of court, its effect, costs, etc. 543. Appeals. TITLE ONE SETTLEMENT OF ESTATES CHAPTER I JURISDICTION § 1. What is jurisdiction. § H. Power of judges in vacation. 2. What courts have jurisdiction. 12. Powers of the clerk in vacation. 3. Concurrent jurisdiction. 13. Probate courts are courts of 4. Transfer of jurisdiction. record. 5. Marion county probate court. 14. What books to be kept. 6. To what jurisdiction is limited. 15. Jurisdiction of justices of the 7. Equitable jurisdiction of pro- peace. bate courts. 16. Probate commissioners. 8. Jurisdiction as afifected by dom- 17. Oath and term of office. icile. 18. Powers and duties. 9. Jurisdiction as affected by as- 19. Rules and their enforcement. sets. 20. Suspension of commissioner. 10. Jurisdiction when judge inter- ested in estate. § 1. What is jurisdiction. — Jurisdiction to settle the estate of a deceased person depends on the domicile of the decedent at his death, or upon the situs of his property. But as between the several courts of the state in which the in- testate is domiciled, jurisdiction attaches primarily to that court which is invested with probate power for the county which in- cludes the decedent's domicile at the time of his death, without regard to the place of his death or the situs of his property.^ The power to hear and determine a cause is jurisdiction ; it is coram judice whenever a cause is presented which brings this power into action. Jurisdiction is the power to hear and deter- ^Woerner Law Admin., p. 439. 1 — Pro. Law. INDIANA PROBATE LAW. mine the subject-matter in controversy between parties to a suit; to adjudicate or exercise judicial power over them." In courts of general or superior jurisdiction, the right to juris- diction is a presumption of the law in favor of such courts ; but in courts of limited or inferior jurisdiction, no such presumption ex- ists, and all the facts necessary to give such courts jurisdiction in any particular matter must appear upon the face of the proceed- ings, or no valid judgment can be rendered.^ "United States v. Arredondo, 6 Pet. (U. S.) 691, 8 L. ed. 547; Doe v. Smith, 1 Ind. 451; Nesbit v. Miller, 125 Ind. 106, 25 N. E. 148 ; Rhode Is- land V. Massachusetts, 12 Pet. (U. S.) 657, 9 L. ed. 1233; Smith v. Myers, 109 Ind. 1, 9 N. E. 692, 58 Am. Rep. 375; Robertson v. State, 109 Ind. 79, 10 N. E. 582, 643. "Two things are absolutely essential to the power of a court to decide a legal controversy, jurisdiction of the subject-matter and jurisdiction of the person. Both must exist ; otherwise it is the imperative duty of the court to decline to do more than ascertain and declare that it has no power to examine or decide the merits of the controversy." "Ju- risdiction is the right to pronounce judgment acquired through due pro- cess of law." Herman Estop, and Res Judicata, § 69. "Jurisdiction is authority to hear and determine." Herman Estop, and Res Judicata, § IZ. Mills v. Commonwealth, 13 Pa. St. 627; Hopkins v. Commonwealth, 3 Mete. (Mass.) 460; Osborn v. Bank of United States, 9 Wheat. (U. S.) 738, 6 L. ed. 204; In re School- Law Manual, 63 N. H. 574, 4 Atl. 878; Withers v. Patterson, 27 Tex. 491, 86 Am. Dec. 643; Quarl v. Abbett, 102 Ind. 233, 1 N. E. 476, 52 Am. Rep. 662n. "The authority to hear and de- termine a cause is jurisdiction to try and decide all of the questions in- volved in the controversy. This prin- ciple is an ancient one, and even in the time when the contest between the chancery courts and common-law courts was hot and angry, it was rec- ognized and enforced. Where the jurisdiction over the court once at- taches it extends over the whole case, and the court will determine all ques- tions necessary to a full adjudication of the controversy. Field v. Holz- man, 93 Ind. 205 ; Carmichael v. Adams, 91 Ind. 526; 1 Pomeroy, Eq. Juris., § 231." See, also, Lantz v jMaf- fett, 102 Ind. 23, 26 N. E. 195. 'Ex parte Watkins, 3 Pet. (U. S.) 193, 7 L. ed. 650 ; Clay County v. Mar- kle, 46 Ind. 96; Jackson v. State, 104 Ind. 516, 3 N. E. 863; Crossley v. O'Brien, 24 Ind. 325, 87 Am. Dec. 329; Pendleton &c. Tpk. Co. v. Bar- nard, 40 Ind. 146; Cooper v. Sunder- land, 3 Iowa 114, 66 Am. Dec. 52; Clay County v. Markle, 46 Ind. 96. "The proposition that 'the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so; and on the contrary, nothing shall be intended to be within the jurisdiction of an in- ferior court but that which is so ex- pressly alleged;' (Peacock v. Bell, 1 Saund. 73) so the rule that 'when the jurisdiction of an inferior court de- pends upon a fact which such court is § 2 JURISDICTION. 3 Any movement of a court is necessarily jurisdiction.* And a court having general probate jurisdiction is a court of superior jurisdiction.^ § 2. What courts have jurisdiction. — Where a man dies, leaving personal property, his estate is administered and distrib- uted under the supervision of some local court whose jurisdiction is confined in whole or in part to such matters. Courts whose jurisdiction is confined wholly to matters of probate, and to ad- ministration of decedents' estates, are probate courts. Courts of probate jurisdiction only do not exist in this state, although the need of such courts is apparent to those who do much probate business. In this state probate jurisdiction is conferred upon the circuit courts as part of their general jurisdiction. The statute provides that the circuit courts of this state shall have exclusive original jurisdiction of all matters relating to the probate and contest of last wills and testaments, the granting of letters testamentary and of administration, and the settlement and distribution of dece- dents' estates. The court granting the letters shall have exclusive required to ascertain and settle by its of the jurisdiction granted to them, decision, such decision is conclusive/ they are invested with the incidental is as well established. Evansville &c. powers of other courts of law and R. Co. V. City of Evansville, 15 Ind. equity." In Sims v. Gay, 109 Ind. 501, 395." 9 N. E. 120, the court had under con- * Clay County v. Markle, 46 Ind. 96 ; sideration the question as to the suf- Dequindre v. Williams, 31 Ind. 444. ficiency of notice to an heir in the ° Doe V. Smith, 1 Ind. 451 ; Powell sale of lands by an executor, and the v. North, 3 Ind. 392, 56 Am. Dec. court said: "But there are other 513n ; Sims v. Gay, 109 Ind. 501, 9 N. rules which apply here. One of them E. 120. "All the courts of the state, is thus stated: 'Where a court of from which an appeal or writ of general jurisdiction assumes jurisdic- error lies, are inferior courts in one tion, the existence of all facts neces- sense, inasmuch as their decisions are sary to confer jurisdiction are pre- subject to be reviewed and reversed sumed to exist.'" Jackson v. State, by the appellate tribunal, and their 104 Ind. 516, 3 N. E. 863, and jurisdiction of the subject-matters of cases cited; Albertson v. State, 95 suits is given and limited by the stat- Ind. 370. In Exchange Bank v. Ault, ute. The probate courts are courts of 102 Ind. 322, 1 N. E. 562, it was said : record, and by the act under which "In considering such questions, every they were organized, in the exercise presumption is indulged in favor of 4 INDIANA PROBATE LAW. 8 2 jurisdiction of all matters touching the settlement and distribution of the estate whereon said letters shall have been granted.^ The circuit court also has exclusive jurisdiction of the settle- ment of estates under guardianship, whether of minors, drunk- ards, persons of unsound mind, old, infirm or spendthrifts. All species of guardianship come within the probate jurisdiction of the circuit court. '^ The court having probate jurisdiction in each county in term time, or the clerk thereof in vacation, shall appoint guardians of minors resident in such county, or having estate therein ; and in case of conflict between two appointments in different counties, the one first made shall exclude all others and extend to all the property of the ward in this state.® Courts having probate jurisdiction also take cognizance of the settlement of partnership affairs by a surviving partner.^ The jurisdiction of the circuit courts in probate matters is separate and distinct from its general jurisdiction in civil cases and must be exercised under different forms and modes, and this jurisdiction is in all cases strictly statutory.^" And such probate jurisdiction, since it has been transferred from the common pleas to the circuit courts, is still as much a separate and independent jurisdiction as when it was exercised by the courts of common pleas. ^^ The circuit courts also have exclusive jurisdiction in a proceed- ing under the statute to have a person adjudged of unsound mind the validity of the judgment or de- 'Burns' R. S. 1908, § 1433. cree sought to be impeached." Pick- 'Burns' R. S. 1908, § 3056. ering v. State, 106 Ind. 228, 6 N. E. " Burns' R. S. 1908. § 9713. 611, vide authorities cited, p. 230; "Noble v. McGinnis, 55 Ind. 528; Cassady v. Miller, 106 Ind. 69, 5 N. E. Jcflfersonville &c. R. Co. v. Sv^rayne, 713. 26 Ind. 477. On the transfer of pro- * Burns' R. S. 1908, § 2724. Jewctt bate jurisdiction from the common V. Hurrle, 121 Ind. 404, 23 N. E. 256. pleas to the circuit court, the practice Courts having probate jurisdiction prevailing in the court of common have exclusive control of the assets pleas in probate matters viras also of the estate of a decedent and no transferred to the circuit court. Alex- other court can entertain jurisdic- ander v. Alexander, 48 Ind. 559. tion to divert or control such assets. " Noble v. McGinnis, 55 Ind. 528. Hiatt v. Hiatt, 30 Ind. 190. § 3 JURISDICTION. 5 and for the appointment of a guardian for such person and his estate/^ § 3. Concurrent jurisdiction. — While probate courts are in a quahfied sense dependent upon statute for jurisdiction, yet like other judicial tribunals, they are the offspring of the common law. They existed in England, in substance at least, before the church authorities, by their usurpation snatched from the crown this rightful portion of its authority, and changed the form and mode of such proceedings. But whether probate jurisdiction is exercised alone by a court created for that purpose or by a court exercising general jurisdiction, the law relating thereto is a part of our system of jurisprudence. In the earlier history of our state there existed a system of common pleas courts and the act establishing such courts con- ferred upon them original and exclusive jurisdiction in all mat- ters relating to the probate of last wills and testaments, granting letters testamentary, of administration and of guardianship, and of all matters relating to the settlement and distribution of de- decents' estates and the estates of minors ; all actions against exec- utors and administrators; actions to authorize guardians to sell and convey real estate of their wards, and the appointment of guardians of persons of unsound mind; the examination and al- lowance of the accounts of executors and administrators, and of the guardians of minors, except where, in special cases, concur- rent jurisdiction was given by law to some other court. ^^ The common pleas and circuit courts had concurrent jurisdic- tion in all actions against heirs, devisees, and sureties of execu- tors, administrators and guardians, in the partition of real es- tate, assignment of dower, and the appointment of a commis- sioner to execute a deed on any title bond given by a decedent, and " Martin v. Motsinger, 130 Ind. 555, in court during the trial, or process 30 N. E. 523. In order for a circuit must have been duly served upon court to acquire jurisdiction to ad- such person. Jessup v. Jessup, 7 Ind. judge a person to be of unsound mind App. 573, 34 N. E. 1017. and to appoint a guardian for such "2 G. & H., § 4, p. 20; Hillenberg person, such person must be present v. Bennett, 88 Ind. 540. 6 INDIANA PROBATE LAW. g 4 in all cases where executors, administrators and guardians are plaintiffs/* § 4. Transfer of jurisdiction. — By an act of INIarch 6. 1873, courts of common pleas were abolished in this state, and their jurisdiction transferred to the circuit courts/^ By this transfer the circuit courts now have conferred upon them a probate juris- diction as original and exclusive as formerly belonged to the courts of common pleas, and which is still as much an independ- ent jurisdiction as when it was exercised by the courts of common pleas.'" To this point the court, in the case of Hillenberg v. Ben- nett, 88 Ind. 540, on page 544, says : "As to actions of which the common pleas and circuit courts had concurrent jurisdiction, so '.hat they might be brought and conducted in either court with the same result in all respects, nothing was added to the jurisdiction of the circuit court by the statute abolishing the common pleas; but as to all matters in which the common pleas had an exclusive or peculiar jurisdiction, that jurisdiction was transferred and added to the jurisdiction of the circuit court, and the laws or parts of laws which had conferred such jurisdiction on the common pleas were continued in force, the name of the circuit court being understood as substituted therein for that of the common pleas." For some time after the abolition of common pleas courts ex- clusive jurisdiction in probate matters was vested in the circuit courts, and although the statute still provides that circuit courts "shall have exclusive original jurisdiction" in probate matters, the legislature has from time to time conferred concurrent juris- diction in such matters in other courts created by it. It has erected a prol^ate court in Marion county/' and has con- ferred probate jurisdiction upon the superior courts in the coun- ties of Lake, Porter, LaPorte, Elkhart and St. Joseph.'*^ Ex- clusive original jurisdiction is given in probate matters to the pro- bate court established in Marion county, while the superior courts " 2 G. & H., § 5. p. 20, § 8, p. 21. 559 ; Noble v. McGinnis, 55 Ind. 528. "Burns' R. S. 1894, §§ 1387, 1388. "Burns' R. S. 1908, §§ 1606-1629. "Alexander v. Alexander, 48 Ind. "Burns' R. S. 1908, §§ 1540, 1575. § 5 JURISDICTION. 7 in the counties above named exercise jurisdiction concurrent with the circuit courts in the above named counties. § 5. Marion county probate court. — The statute provides that in all counties in this state in which is situated an incorpo- rated cit}' with a population of not less than one hundred thou- sand inhabitants there shall be established a probate court.^^ So far jMarion county is the only county in the state which meets the requirements of the statute, and such a court has been established in that county. Such court is given original and exclusive jurisdiction in pro- bate matters, and concurrent jurisdiction with the other courts in that county in certain other specified matters. The statute reads as follows : "Said probate court within and for the county for which it is organized shall have original, exclusive jurisdiction in all matters pertaining to the administration and settlement of the estates of minors, insane persons, habitual drunkards, insolvents, estates of deceased persons, assignments, adoptions and surviving part- nerships : and shall have concurrent jurisdiction in the following matters : 1. In proceedings in partition. 2. Application for the appointment of receivers. 3. Application for writs of habeas corpus. 4. Proceedings to resist probate of wills and proceedings to contest wills. 5. Complaints to construe wills and to dissolve trusts. 6. Suits for divorce and for alimony and support. 7. All suits by and against executors, administrators, guard- ians, assignees and trustees. -° Upon the organization of a probate court in any county, all probate causes pending in the circuit court of such county shall be transferred to such probate court. And all warrants, subpoenas, rules, orders of court, and other process which may have issued from the circuit court of such county, in probate causes, shall be "" Burns' R. S. 1908, § 1606. "-' Burns' R. S. 1908, § 1615. 8 INDIANA PROBATE LAW. § 6 returnable to the probate court upon the first day of the first term thereof to be holden ; and said probate court shall have jurisdic- tion thereof, and proceed therein ; and all proceedings in probate causes in said court shall be conducted as proceedings are or may be required, by law, to be conducted in the circuit court in coun- ties having no probate court."^^ § 6. To what the jurisdiction is limited.— From an exam- ination of the above statutes it will be seen that the exclusive jurisdiction in probate matters now conferred upon the courts is limited to the granting of letters testamentary and of administra- tion; the probate and contest of wills; and a general supervision of estates of decedents, their settlement and distribution ; issuing letters of guardianship; and the control and management of the estates of minors, and of persons of unsound mind. And all mat- ters touching decedents' estates, wills, administrators, executors, guardians and heirs, and all business transacted in relation there- to, in such courts, must be kept separate in proper books, prepared for that purpose, in the same manner as when the courts of com- mon pleas had Jhe exclusive original jurisdiction of the probate business of the state."" § 7. Equitable jurisdiction of probate courts. — In deter- mining the extent of probate jurisdiction reference must usually be had to the statute, as the scope of such jurisdiction is limited and prescribed by the statute creating it. In this sense probate courts are courts of limited jurisdiction. A question, however, frequently arises as to whether this juris- diction is so limited as to exclude the exercise of any jurisdiction other than what is found in the statute. Mr. Woerner in his work on administrations says : "Unless a warrant for the exercise of jurisdiction in a particular case can be found in the statute, given either expressly or by implication, the whole proceeding is void ; but where jurisdiction is conferred over any subject-matter, and it becomes necessary in the adjudication thereof to decide col- => Burns* R. S. 1908, § 1616. -^ Noble v. McGinnis, 55 Ind. 528. §7 JURISDICTION. lateral matters over which no jurisdiction has been conferred the court must of necessity decide such collateral issues."^^ The doctrine was early announced in this state that our pro- bate courts possess general equity powers in relation to the ad- ministration and guardianship of estates.--' And this doctrine has been adhered to. The Supreme Court, in Galvin v. Britton, 151 Ind., on page 11, says: "That the circuit courts of this state in the exercise of their probate jurisdiction and powers with which they are invested by statute in respect to the estates of decedents, have the right or power, when the necessity of the case demands, to determine either legal or equitable questions, when they are properly presented, or arise in the course of probate jurisdiction, and to award all necessary relief, whether legal or equitable, is a rule well settled by the authorities."^^ ■^ Woerner Law of Admin., § 142. In Clapp V. Huron County Bank. Co., 50 Ohio St. 528, 35 N. E. 308, it is said: "That if, for the sake of the argument, we assume that the lan- guage of that section does not in terms expressly confer the jurisdic- tion, does it follow that such power is wanting? Although the probate court is of limited and statutory jurisdiction, it is, we think, a mistake to suppose that it has no equity powers unless the same are expressly conferred. A power given to make a particular or- der implies authority to hear and dis- pose of all questions which it is neces- sary to have settled before the mak- ing of such final order, unless the needed authority is distinctly denied." "It may therefore be said that when a power is conferred upon the pro- bate court b}^ statute unlimited in its method of execution that the probate court has full power to hear and ad- judicate all matters relating thereto and pass upon them notwithsanding the fact that in doing so it may exer- cise the powers of a court of chan- cery or one of common law or only such power as is strictly confined to probate jurisdiction. By virtue of the general equity powder conferred upon the court of common pleas by law, where the remedy afforded by the pro- bate court is inadequate, in order that there may not be a failure of justice, the common pleas will entertain ju- risdiction." Rote V. Stratton, 2 N. P. (Ohio) 27. ^^ Powell V. North. 3 Ind. 392, 56 Am. Dec. 513n; Langsdale v. Wool- len, 120 Ind. 78, 21 N. E. 541 ; DeHart V. DeHart, 15 Ind. 167. It is held in the case of Powell v. North, 3 Ind. 392, 56 Am. Dec. 513n, that a probate court, in the exercise of its equity jurisdiction, has power after the dis- solution of a partnership by the death of one of the partners, to direct that such partnership be continued for the benefit of infant wards, and to order the investment of the funds of such wards in the partnership business. " Smock V. Reichwine, 117 Ind. 194, 19 N. E. lid ; Hyland v. Baxter, 98 N. Y. 610; Blanton v. King, 2 How, 10 INDIANA PROBATE LAW. § 8 § 8. Jurisdiction as affected by domicile. — As a general rule a probate court has jurisdiction over the administration of a decedent's estate if such decedent, at the time of his death, had his domicile within the jurisdiction of the court. But in Schouler on Executors and Administrators 34, it is said that, "inasmuch as the collection of credits and effects, the pay- ment of debts, the distribution of the residue, and the final settle- ment of the estate, are of universal convenience, the courts of the countrv or state do not feel compelled to wait until those of an- other have acted, nor to submit domestic claims to foreign juris- diction ; but, aside from the deceased person's last domicile and a principal probate appointment, a competent local and ancillary ap- pointment is procurable, on the suggestion that property requir- ing administration lies within the local jurisdiction. In other words locality, with personalty belonging to the estate of a de- ceased person, may confer a local probate jurisdiction regardless of the consideration of his last domicile." What the last domicile of a decedent may be is to be inferred from all the facts and circumstances of the case. A mere tem- porary residence in any country does not give the courts of that country exclusive jurisdiction. But the rule prevails that though one may have two domiciles for certain purposes he can have only one for the purpose of succession."*^. Where a person has left one domicile with the intention of set- tling in another and dies on the way, the law is not settled as to which jurisdiction should grant letters of administration upon his estate."^ Where a person dies leaving property elsewhere than at the place of his domicile, jurisdiction of such property for the pur- poses of administration may be assumed by the courts of the (Miss.) 856; Donovan's Appeal, 41 21, 16 N. E. 732; Bartlett v. Hyde, 3 Conn. 551; Woerner's Am. Law of Mo. 490; George v. Watson, 19 Tex. Admin., § 149 and autiiorities cited in 354; Olson, Will of, 63 Iowa 145, 18 foot note 25 to this chapter. X. E. 854; Burnett v. Meadows, 7 B. =" Somerville v. Somervillc, 5 Ves. Mon. (Ky.) 277, 46 Am. Dec. 517: jr., 750. Schouler Extrs. & Admrs., 23. " Cummings v. Hodgdon, 147 Mass. 8 JURISDICTION. II country where the property is, regardless of the domicile of the owner.^^ And such administration may be granted, although no admin- istration has been taken out at the place of the decedent's domi- cile.-^ If administration is granted in the jurisdiction of the last domi- cile of the decedent, this administration is the principal adminis- tration and one granted elsewhere is merely ancillary.'^*' The principal letters of administration, however, need not precede the ancillary. The latter is not dependent upon the former. ^^ "" Jeffersonville, etc., R. Co. v. Swayne, 26 Ind. 477; Miller v. Jones, 26 Ala. 247; Grimes v. Talbott, 14 Md. 169; Wright v. Smith, 19 Nev. 143, 7 Pac. 365. The case of Sprad- dling V. Pipkin, 15 Mo. 118, says: "It is a settled rule of law, not re- quiring at this day the citation of au- thorities to maintain it, that the ad- ministration of all the goods of an in- testate, wherever situated or found, is to be made according to the law of the land of the testator's domicile. When they are in a different country, they are first applied under the laws of that country to the satisfaction of the claims of creditors who establish their claim under its laws, and if there are any of its citizens who claim, as distributees, distribution of the assets will be made there. But, after the claims of creditors are satis- fied, and when the distributees reside in the country of the testator's domi- cile, or there are other creditors whose claims remain imsatisfied, the tribunals of the country, in which the assets are found, will chrect them to be remitted to the country of the dom- icile for further administration." Mc- Cord V. Thompson, 92 Ind. 565. "Where an intestate was domiciled and died outside of this state, there can be no valid grant, in this state, of administration upon his estate, unless he left assets here, or assets of such intestate have come into this state after his death." ■-'•'Wood V. Matthews, 7Z Mo. 477. In Stevens v. Gaylord, 11 Mass. 256, it is said: "It is true that such aux- iliary administration is not usually granted until an administrator is ap- pointed in the place of the deceased's domicile. But this can not be a necessary prerequisite, for if so, and ■ it should happen that administration is never granted in the foreign state, the debts due here, vmder such cir- cumstances, to a deceased person, could never be collected; and the debts due from him to citizens of the state might remain unpaid." ^^ McCord V. Thompson, 92 Ind. 565 ; Clark v. Clement, ZZ N. H. 563 ; Green v. Rugely, 23 Texas 539. In McCord V. Thompson, 92 Ind. 565, the court says : "It is well settled that be- tween different administrators in dif- ferent states there is no privity." In Croxton V. Renner, 103 Ind. 223, 2 N. E. 601, it is said that the jurisdiction of the circuit court to grant letters of administration is derived from the statute, and can only be exercised in the cases provided for thereby. ^'Shephard v. Rhodes, 60 111. 301; Pinney v. McGregory, 102 Mass. 186. 12 INDIANA PROBATE LAW. § 9 The reason that the administration of the last domicile is re- garded as the principal administration is based on the well settled doctrine that the law of the domicile of the owner of personal property governs the descent and distribution, or other disposi- tion of such property.^^ § 9. Jurisdiction as affected by assets. — Where a decedent is an inhabitant of this state, though he may die out of the state, jurisdiction is, as we have seen, in the county of his domicile at the time of his death. But where one not being an inhabitant of this state dies, either in this state or out of it, leaving assets in this state, or assets of his come into the state after his death, the jurisdiction to administer upon his estate turns on the question of assets and is in the county where such assets may be located. ^^ Letters testamentary or of administration granted upon the es- tate of a nonresident decedent, in the absence of assets in this state, belonging to such estate, are coram non judice and void.^* The act of granting such letters is a judicial one, and binding upon all courts and persons; and such act is presumed to have been done in a legal manner, and will be so respected, even when illegal, until revoked or set aside.^^ ^'Wilkins V. Ellett, Admr., 108 U. ''Ray v. Doughty, 4 Blackf. (Ind.) S. 256, 27 L. ed. 718. 115; Landers v. Stone, 45 Ind. 404. =" Burns' R. S. 1908, § 2743. In Ferguson v. State, 90 Ind. 38, the '^ Jeffersonville &c. R. Co. v. court says: "While the appointment Swayne, 26 Ind. 477; Croxton v. Ren- of an administrator, under the facts ner, 103 Ind. 223, 2 N. E. 601. In stated, was irregular and would prob- McCord V. Thompson, 92 Ind. 565, it ably be ground in a direct proceeding is said : "A citizen of this state go- for revoking his letters, such appoint- ing into another state and there pur- mcnt was not void. It can not be at- chasing of an administrator property tacked in a collateral proceeding." which, in the course of administra- And in the case of Bowen v. Stewart, lion, has passed under the jurisdic- 128 Ind. 507, 26 N. E. 168, 28 N. E. tion of a proper tribunal of that state, 7i, the court said: "The court hav- and for the purchase-money execut- ing granted letters to the appellee, the ing to such administrator a negotia- legal presumption existed that the ac- ble promissory note, cannot thereby tion of the court was right, and the create assets in this state on which a burden was upon the appellants to grant of ancillary administration can prove that there was no necessity for properly be made here." administration upon Bowen's estate." § 10 JURISDICTION. 13 Nor does the right to letters of administration depend upon the existence of tangible assets. There are instances where the ap- pointment of an administrator may be proper and necessary in order to prosecute some claim of indeterminate value, or to make satisfaction of some record, and perhaps even for other pur- poses.^® § 10. Jurisdiction when judge interested in estate. — It may be stated as a general proposition that any interest of the judge in the estate to be settled will disqualify him so that he can- not act. "No man can serve two masters" is a statement from very high authority, and taking into consideration the frailties of human na- ture, no one can act justly and impartially where he is an inter- ested party. In the absence of any statute prescribing what inter- est will disqualify, just what will constitute such interest must rest largely in the moral sense of the judge himself. The interest which would disqualify a judge usually will arise from relationship or a financial interest. In one case it was held that it was a manifest violation of judicial delicacy and propriety for a judge to appoint his son as administrator;'^ and in another it was held that the appointment of a brother of the judge's wife was void.^^ But the fact that an aunt by marriage is a legatee un- der a will before him for probate does not disqualify himf^ nor will the fact that his father-in-law is a creditor disqualify him.''* But if he has any financial interest in the estate a judge should not assume jurisdiction.*^ If a judge of probate has any interest in the estate or has been appointed executor thereof, he cannot assume jurisdiction to pro- bate the will or grant letters of administration; or if he has a =« Toledo &c. R. Co. v. Reeves, 8 ''Hall v. Thayer, 105 Mass. 219, 7 Ind. App. 667, 35 N. E. 199; Ex parte Am. Rep. 513. Jenkins, 25 Ind. App. 532, 58 N. E. ^ Marston's Appeal, 79 Me. 25, 8 560, 8 Am. St. 114. Atl. 87. "Plowman v. Henderson, 59 Ala, ""Aldrich's Appeal, 110 Mass. 189. 559. *^Sigourney v. Sibley, 22 Pick. (Mass.) 507, 33 Am. Dec. 762. 14 INDIANA PROBATE LAW. § II claim against an estate, he is not competent to assume jurisdic- tion/- § 1 1. Powers of judges in vacation. — The judges of the cir- cuit courts shall have power, throughout their respective juris- dictions, to make orders in vacation for the sale of personal prop- erty at private vendue ; for the compounding of debts ; for the set- tlement of an estate as insolvent ; for the execution of additional bonds; and such other orders of an ex parte nature as may facili- tate tlie settlement of estates. Such orders shall be in writing, signed by the judge, and shall be, by the clerk, filed and recorded as a vacation entry in the proper record.'*^ § 12. Powers of the clerk in vacation. — For the purpose of granting probate of wills, issuing letters testamentary and of ad- ministration, filing reports, accounts, and petitions of executors and administrators, filing claims against the estates and issuing process and notices required, the clerks of the circuit courts shall keep th.e courts open in vacation thereof ; and such business done by a clerk shall be subject to the supei-vision of the court at the next ensuing term.** This statute gives the clerk authority to grant letters of admin- istration in vacation when the right to such administration is not controverted ; and the court, at its next ensuing term, is bound to ratify such appointment unless some valid objection is made against it.*^ And such vacation appointment made by a clerk must be confirmed by an order of the court at its next ensuing term, or such appointment will then cease to be of effect.*'' Such clerk shall report to the circuit court at its succeeding term his acts in the premises; when, for good cause shown, such court may su- persede letters issued by such clerk, or disapprove of the bond ** Thornton v. Moore, 61 Ala. 347. may or must do it, and the judge in " Burns' R. S. 1908, § 2726. In con- vacation cannot, unless the power is sidering the power of a judge in va- expressly conferred upon him by law. cation, the court in Newman v. Ham- Ferger v. Wesler, 35 Ind. 53." mond, 46 Ind. 119, says: "Wherealaw "Bums' R. S. 1908, § 2725. authorizes or contemplates the doing *^ Brown v. King, 2 Ind. 520. of an act by a court, it is and must be *' State v. Chrisman, 2 Ind. 126; understood that the court in term time Lee v. Ice, 22 Ind. 384. §13 JURISDICTION. 15 taken; in which case such court shall grant letters to some other person entitled to the same, or require a new bond or additional sureties. But if no such cause is shown, the court shall ratify and adopt the letters and bond granted and taken by such clerk; which fact shall be entered in the order book of such court.*' Letters issued by a clerk under authority of this statute are con- clusive upon all persons until set aside, whether they are con- firmed by the court or not.'*^ Section 2760, Burns' R. S. 1908, is mandatory and upon the convening of court, it shall approve and confirm the letters of ad- ministration granted by the clerk in vacation, unless for good cause shown the court should find it to the interest of such estate to revoke the letters so granted. The court has no power to ar- bitrarily revoke such letters.*^ § 13. Courts of record. — Courts of probate are courts of record. The law requires a record of the proceedings in such courts to be kept, and this record is evidence of the acts of such courts.^'' The statute reads : "All proceedings touching the pro- bate of wills and settlement of decedents' estates shall be re- corded in separate books kept for that purpose : Provided, That proceedings touching the guardianship of infants and insane per- sons may be recorded therein. The clerk of each circuit court shall also keep, in his office, a book for the recording of wills and the probate thereof; a book in which he shall record all letters testamentarv' and of administration, within ten days after the same are issued ; a book in which he shall record, in ten days after the same are filed, all bonds of executors and administrators; a book in which he shall record all inventories and sale-bills of per- '' Burns' R. S. 1908, § 2760. In that the court at the next term had Lee V. Ice, 22 Ind. 384, it is held that the power to revoke his letters, where letters of guardianship are is- ^^ Collier v. Jones, 86 Ind. 342. sued by the clerk in vacation, that the '' Kinnick v. Co}-, 40 Ind. App. 139, court at the next succeeding term 81 N. E. 107; Barricklow v. Stewart, may, without notice to the guardian, 31 Ind. App. 446, 68 N. E. 316; Bowen revoke such letters and appointment, v. Stewart, 128 Ind. 507, 26 N. E. 168, and appoint another person as guard- 28 X. E. IZ. ian. That in such a case the appointee ^° State v. Chrisman, 2 Ind. 126. of the clerk was bound to take notice ' 1 6 INDIANA PROBATE LAW. 8 14 sonal estates, within thirty days after the same are filed ; a general entry, claim and allowance docket combined, and a fee book. He shall also keep a final record book, in which he shall, upon the or- der of the court, or request of a party in interest, but not other- wise, enter a complete record of any matter or proceeding in the administration of an estate; and the cost thereof, if ordered by the court, shall be taxed as cost against the estate; or, if such com- plete record be made at the request of a party in interest, then the cost thereof shall be paid by him, and charged to the estate, and in advance, if required by the clerk. "^^ § 14. Books to be kept. — The book required to be kept by the clerk for general entry, claim and allowance docket, shall con- tain on each page a printed heading: No. — , estate of ; executor or administrator. On the left-hand page shall be kept the general entry docket, and on the corresponding right- hand page the claim and allowance docket. As soon as letters testamentary or of administration shall be issued on an estate, the clerk shall note the estate on the general entry docket, and note thereon the number of the estate, name of the executor or administrator, his post-office address, date of letters, penalty of bond, and sureties thereon. When an inventory or sale-bill shall be filed, he shall note thereon the amount and date of filing; he shall, from time to time thereafter, note thereon, briefly, the pro- ceedings of the court and date thereof. Each estate set off to a widow without administration, and the number thereof, shall also be noted on said docket. Estates shall be numbered from one up- wards, consecutively, and shall retain the same number pending the settlement thereof. On the right-hand page, opposite the gen- eral entry docket of an estate, shall be kept the claim and allow- ance docket of said estate; it shall be provided with columns and printed headings thereto, for the number of the claim, name of claimant, date of filing, date of allowance and amount thereof, and remarks. The claims, when filed, shall be by the clerk num- bered from one upwards, and bear the same number in all subse- " Burns' R. S. 1908, § 2727. § 15 JURISDICTION. 17 quent proceedings thereon ; and for all services in filing and re- cording on such docket any claims, the clerk shall be allowed ten cents, and no more.^' Such record book shall be provided by the clerk at the expense of the county. ^^ § 15. Jurisdiction of justices of the peace. — The earlier statutes in this state conferred jurisdiction upon justices of the peace in actions by and against executors and administrators,^* and justices were given jurisdiction of suits upon an administra- tion bond against executors and administrators and their sureties, where the amount claimed for the breach of such bond did not exceed the jurisdiction of justices of the peace. ^^ The act estab- lishing courts of common pleas conferred upon such courts orig- inal and exclusive jurisdiction in all actions against executors and administrators. °° Under this statute it was held that a justice of the peace had no jurisdiction in an action which was founded upon a claim against an executor or administrator in his fiduciary capacity, and a judgment rendered in such cause was held void.^^ When courts of common pleas were abolished, their jurisdiction was trans- ferred to the circuit courts.^* There seems to be no doubt of the right of an executor or ad- ministrator to maintain suits in justices' courts upon any claim due the estate, the amount of which falls within the limit fixed upon the jurisdiction of justices of the peace, as the practice act appears to confer jurisdiction upon such justices within a given amount, without reference to the character in which a party sues.'^^ '- Burns' R. S. 1908, § 2835. case of Hillenberg v. Bennett, 88 Ind. " Burns' R. S. 1908, § 2988. 540, the court, in considering the ques- " R. S. 1843, p. 683 ; Thompson v. tion of suits by or against executors Harbison, 7 Blackf. (Ind.) 495. or administrators, says: "In Wheeler "Walker v. Prather, 3 Ind. 112; v. Calvert, 25 Ind. 365, which was a Burns' R. S. 1894, § 1512. suit by an administrator in the court "2 G. & H., § 4, p. 20. of common pleas, upon a promissory "Palmer V. Fuller, 22 Ind. 115. note for $4.50, the cause of action '* Burns' R. S. 1894, § 1387. was admitted by the defendant, and ""Burns' R. S. 1894, § 1500; Arnold this court sustained a judgment V. Fleming, 14 Ind. 10 ; Scanland v. against the defendant for costs. In Ruble, 4 Blackf. (Ind.) 481. In the construing said sections 4 and 8, the 2 — Pro. Law. l8 INDIANA PROBATE LAW. § l6 The conclusion from all this is that as to suits against executors and administrators in their fiduciary capacity, justices of the peace no longer have jurisdiction; but that an executor or administra- tor, as such, may yet maintain an action in justices' courts, sub- ject only to the statutory limitation imposed upon such courts as to the subject-matter of suit and the amount sued for. § 16. Probate commissioners. — There has been created by the legislature of this state a system of subordinate, or assistant, probate courts under the supervision of officers designated pro- bate commissioners. These officers are appointed by the judge of the circuit court in the counties where they are authorized. The latest legislative enactment upon this subject is as follows: That in all counties of this state containing a voting population of over seven thousand as shown by the vote cast for secretary of state at the last preceding election, the judge of the circuit court of each of said counties when he shall find that the pro- bate business of his court requires it, and that the interests of minor heirs and other beneficiaries of the state, guardianships, re- ceiverships and other trusts pending in said court will be pro- tected and subserved thereb}^ and that the same is demanded for the proper protection of such interests, shall cause such finding to be entered of record, and thereupon shall appoint some competent person, resident of the county, as probate commissioner of such court, and in such finding and order of appointment, of proof first heard in open court, shall fix and specify the annual salary of such commissioner and the time of payment thereof, and shall thereupon cause to be certified to the auditor of such county a copy of such finding and order, which shall be suf- court held that all suits against ex- cases costs would follow judgment, ecutors or administrators must be It was further said that executors and brought in said court of common administrators might sue either in the pleas, and that executors and admin- circuit court or before justices of the istrators might sue in that court upon peace, in cases in which jurisdiction any claim, debt or demand of any kind was conferred on those courts, but accruing to them in their fiduciary ca- that they were not compelled to do so, pacity, without regard to the amount but might sue in the common pleas." of such demand, and that in all such I 17 JURISDICTION. 19 ficient authority for said auditor to draw his warrant for the pay- ment thereof at the times and in the amounts in said record set forth. «° Another statute provides for the employment of assistants to these officers and fixes their compensation." It is the duty of probate commissioners to take over the routine duties imposed by law upon circuit judges in probate matters. These findings and acts are reported to the circuit court and become a part of the rec- ords of such court as if made by the regular judge thereof.''^ § 17. Oath, term of office. — "Said commissioner shall take and subscribe an oath for the faithful discharge of his duties, and shall hold his office for the term of four years, subject to the provisions of this act, and for his services as such commissioner shall receive or be allowed no fees, emoluments or compensation whatever, other than the salary fixed by said court and required to be paid out of the treasury of said county, as aforesaid, and which salary shall not be increased during his said term of office."^^ § 18. Powers and duties. — "Said commissioner shall have power to administer oaths, take acknowledgments, and do all other acts, legally pertaining to said office and necessary to carry into effect the rules or orders of said court, and he may, at any time, be removed by the court for failure to properly discharge the duties of his trust.®* "At the time of the appointment of said commissioner, or as soon thereafter as may be practicable, the court shall define the duties of such commissioner and cause a record thereof to be made upon the order book of said court. "''^ § 19. Rules and their enforcement. — "Such court shall have power to make and enforce all necessary rules for the pro- tection of the several trusts pending therein, and the requiring of ^"Acts 1911, p. 646. ^^ Burns' R. S. 1908, § 2729. "Burns' R. S. 1908, §§ 2734, 2736. ■« Burns' R. S. 1908, § 2730. »= Burns' R. S. 1908, §§ 2735, Acts ^Burns' R. S. 1908, § 2731. 1911, p. 63. 20 INDIANA PROBATE LAW. 8 I© delinquent guardians, administrators or other trustees to make re- ports, give new or additional bonds, or discharge any other duty required of them by law or the rules of said court, and may vest such commissioner with all necessary power in the premises, look- ing to the protection of such trusts and the enforcement of the law and rules of said court in reference thereto, and the proper and speedy transaction of the probate business of such court, as the court in its discretion may deem advisable and necessary.''^ § 20. Suspension of commissioner. — "At any time after the appointment of such commissioner when such court shall deem, that his services may be dispensed with, either for a certain or indefinite length of time, without detriment to the business of said court, or the interest of the trusts therein pending, the court shall enter of record its finding to that effect and cause the same to be certified to the auditor of such county, and thereupon, dur- ing the time so specified in such finding, the salary of such com- missioner shall cease, and his services during said time be dis- pensed with; the said commissioner to again assume his duties and receive his salary therefor only when the court shall so or- der."" «« Burns' R. S. 1908, § 2732. ^ Burns' R. S. 1908, § 2733. §32. Same — Statute mandatory. 33. Void and voidable letters. 34. Who is to be preferred. 35. Right of husband or wife. 36. The right of others. 37. The right in the same degree. 38. Who not entitled to letters. 39. Waiver or renunciation of the right. 40. Miscellaneous. 41. Form of petition. 42. Letters as evidence. 43. Notice of appointment. 44. Proof of notice. CHAPTER II LETTERS OF ADMINISTRATION §21. Generally. 22. The right to letters. 23. Time when letters issue. 24. Settlement without administra- tion. 24a. No administration — Heirs' rights. 25. Where granted. 26. Statute must be complied with. 27. Meaning of assets. 28. Assets in different jurisdictions. 29. Ancillary administration. 30. Powers and duties of ancillary administrators. 31. To whom letters shall be granted. § 21. Generally. — It was the rule of the common law that the personal property of a deceased person vested in his personal representatives, while title to his real estate passed to his heirs; and out of this rule grows the one applied in this state that the personal property is the primary fund out of which the debts of a decedent must be paid. It therefore follows that where there is any personal property to distribute, or where there are any debts owing by a decedent, there should be an administration of his estate. While the personal property is the primary fund out of which debts are to be paid, the fact that a decedent's real estate also is liable for his debts, makes it important, so far as the title to the real estate is concerned, that there should be an administration of his estate; for if there is no evidence in the public records of an administration, it may prove difficult to show that the real estate may not be held liable for some unpaid debt of the decedent. 21 22 INDIANA PROBATE LAW. § 22 Letters issued by the court, or the clerk thereof in vacation, are of two kinds : Letters testamentary and letters of administration. Executors are persons appointed under letters testamentary, while those appointed under letters of administration are called admin- istrators. An executor is named and empowered by the will of his testator, and in the settlement of the estate is largely con- trolled by the terms of the will; and in the absence of a will the estate is settled by an administrator appointed by the court, who makes such settlement by direction of the court according to the statutes governing such settlement. The duties of executors and administrators in the management of estates intrusted to their care are very similar, and their discharge of such duties is gov- erned and controlled by the same statutes, so that what may be said as to the law governing one class will generally be found ap- plicable to the other. An executor, failing to qualify or otherwise declining the trust imposed upon him by the will, an administra- tor with the will annexed will be appointed by the court, and when appointed such administrator will in all things pertaining to the settlement of the estate be governed by the will as the executor would have been if he had assumed the trust.^ § 22. The right to letters. — The legal presumption is that a decedent dies intestate.^ An intestate is one who dies leaving no will, but leaving assets to be administered according to law. Letters of administration are only granted upon estates of intes- tates. Before a valid grant of administration can be had upon an es- tate, it must appear to the clerk or court granting the letters, that the owner of such estate died intestate; and where nothing is ^Before letters are granted on the it is said: "It is conclusively pre- estate of one represented to be dead, sumed, in a collateral proceeding, that the fact of such death must be proved, a man is dead v^rhen letters of admin- and if letters of administration are istration are granted on his estate by- applied for, that he died intestate ; the proper tribunal." and proof also should be made of the " Stokesberry v. Reynolds, 57 Ind. date of death and the value and char- 425 ; Mortgage &c. Co. v. Moore, 150 acter of his property. In the case of Ind. 465, 50 N. E. 72. Jenkins v. Peckinpaugh, 40 Ind. 133, § 23 LETTERS OF ADMINISTRATION. 23 shown to the contrary it will be presumed that a, decedent died intestate." And a grant of letters of administration is prima facie evidence of the death of the person on whose estate the adminis- tration is granted.^ If letters of general administration are granted during the pen- dency of a contest over a will, or after a will has been probated, such letters are null and void.° The right to issue letters of administration upon the estate of a decedent, also depends to some extent upon the value of the estate.^ On the death of a person who has made no will his real estate descends to his heirs subject to the payment of debts after his personal estate is exhausted, while such personal estate is vested in the person or persons legally appointed by the proper officer or tribunal in trust, for the payment of the debts of such decedent and the distribution of the surplus to those who are by law en- titled to it." § 23. Time when letters issue. — There is no provision in the law of this state requiring an application for letters of admin- istration to be filed within any specified time. In the absence, however, of any statutory regulation fixing the time within which letters of administration must be granted, courts insist there shall be no unreasonable delay except for good cause shown. It being ^ Bulkley v. Redmond, 2 Brad. (X. provisions rest, or rather absurdity of Y.) 281 ; Stokesberr}^ v. Reynolds, 57 a contrary view is self-evident. Why Ind. 425. should the law compel an administra- * Seibert v. True, 8 Kan. 52 ; Jenkins tion where there is nothing to be ad- v: Peckinpaugh, 40 Ind. 133. ministered? The appointment of an 'Landers v. Stone, 45 Ind. 404; administrator could have no possible Watson V. Glover, 11 Ala. 323. effect except to diminish or eat up ® Burns' R. S. 1908, § 2943. Pace v. what the law intends for the widows Oppenheim, 12 Ind. 533 ; Bean v. Bum- or orphans." Woerner Am. Law pus, 22 ]\Ie. 549; Pinney v. McGreg- Admin. 436. cry, 102 Mass. 186. It is provided by ' 2 Bouv. Inst. 141 ; Weyer v. Second statute in this state that if the amount Xat. Bank, 57 Ind. 198; Highnote v. of the estate left by a decedent does White, 67 Ind. 596; Rogers v. Zook, not exceed the allowance made by law 86 Ind. 237 ; Harley v. Heist, 86 Ind. to his widow no administration need 196, 44 Am. Rep. 285 ; Humphries v. be had upon his estate. "The sound- Davis, 100 Ind. 369; Latta v. Miller, ness of the principle upon which such 109 Ind. 302, 10 N. E. 100. 24 INDIANA PROBATE LAW. g 24 held in one case that a delay of three years must be satisfactorily explained.^ In another case it was held that no presumption arose against an application for letters made seventeen years after the death of the intestate, that there had been a prior administration and that the estate had been closed.^ § 24. Settlement without administration. — Whenever a resident of this state dies, either testate or intestate, the law re- quires that letters testamentary or of administration upon his es- tate, shall issue from some court of competent jurisdiction for the final settlement of such estate. Such settlement, which should be made in each and every estate, becomes an absolute necessity when an estate is encumbered with debts. The necessity for this- is obvious; the widow is entitled to a certain portion of the real and personal property of every estate against the heirs and cred- itors, while the heirs are not entitled to any part of an estate until the debts are paid.^*' But this rule is not absolute and arbitrary. The administration of an estate is not absolutely necessary, especially when there are no debts against it, and the heirs have made a satisfactory dis- tribution among themselves. In Bowen v. Stewart, 128 Ind., on page 515, our Supreme Court says: "It cannot well be doubted that the heirs to an estate, who are of full age and capable of con- tracting, may settle such estate without regular administration, free from the interference of third parties, provided the estate owes no debts, and there is nothing to be done by an administra- tor except to divide such estate among the several heirs. So they *Todliuntcr V. Stewart, 39 Ohio. St. collect his claim against the dece- 181. dent's estate, by and through an ad- " Hcaly V. Buchanan, 34 Cal. 567. ministration of such estate, and in no '" Northwestern Conference v. My- other way or manner, where his claim ers, 36 Ind. 375; Wilson v. Davis, is not secured by a mortgage or spe- 37 Ind. 141; Lynch v. Jennings, 43 cific lien on particular property; and, Ind. 276; Leonard v. Blair, 59 Ind. without such administration, he can- 510. In McCoy v. Payne, 68 Ind. not recover his claim from the widow, 327, it is said : "Under the law of this heirs, devisees or legatees, or even state, the creditor of a decedent can from an executor de son tort." 24 LETTERS OF ADMINISTRATION. 25 may settle such estate without administration where there are debts, provided the creditors do not object to such settlement, and a court of equity will relieve them from the interference of third persons who procure letters of administration, without their con- sent, where there is no necessity for such letters."^^ If all the persons entitled to distribution are of full age they may pay the debts of the estate and divide the property among themselves without the appointment of an administrator/- " Taylor v. Phillips, 30 Vt. 238; Hays V. Vickery, 41 Ind. 583; Owings V. Bates, 9 Gill. (Md.) 463; Babbitt V. Bowen, Zl Vt. 437 ; Henderson v. Clarke, 27 Miss. 436; Needham v. Gil- lett, 39 Mich. 574; Fretwell v. Mc- Lemore, 52 Ala. 124; Coldron v. Rhode, 7 Ind. 151; Hibbard v. Kent, 15 N. H. 516; Hargroves v. Thomp- son, 31 Miss. 211; Walworth v. Abel, 52 Pa. St. 370; Weaver v. Roth, 105 Pa. St. 408; Woerner Am. Law. Ad- min., § 201; Block v. Butt, 41 Ind. App. 487, 84 N. E. 357; Bruning v. Golden, 159 Ind. 199, 64 N. E. 657. '= Salter v. Salter, 98 Ind. 522 ; Rob- ertson V. Robertson, 120 Ind. ZZZ, 22 N. E. 310; Hays v. Vickery, 41 Ind. 583; Bowen v. Stewart, 128 Ind. 507, 26 N. E. 168, 28 N. E. 1Z ; Taylor v. Phillips, 30 Vt. 238; Needham v. Gil- lett, 39 Mich. 574. In Schneider v. Piessner, 54 Ind. 524, the court, in speaking of the right of the heirs to sue to recover a debt due to the de- cedent, says : "But in our opinion, where the heirs of the creditor sue for the debt, the complaint should aver every fact necessary to give them a right of action and to recover the money. It is not sufficient to show that there are no debts to be paid. The complaint must show by its aver- ments that the heirs suing are en- titled to the money. It is upon this ground that it is necessary to allege the nonexistence of debts." Lock- hart V. Schlotterback, 12 Ind. App. 683, 40 N. E. 1109. In considering the right of an administrator to sue and recover from an heir of a decedent property of the decedent taken and held by the heir, the Supreme Court in the case of Humphries v. Davis, 100 Ind. 369, says : "Here the personal and real property were both in the possession of the heir rightfully en- titled to it, and the administrator should not be allowed to take it from him unless needed for some lawful purpose. If it was not needed for some legitimate purpose, the adminis- trator ought not to take it from the lawful heir. It would ultimately vest in the heir, and his rights and posses- sion should not be disturbed. It is clear that if some third person had secured the property, and there were no debts, the heir would have been awarded it in due course of law, and now, that he has it, it should not be taken from him without showing a full and clear right. There would be little good accomplished by going through the course of administration and at the end put the property back in the hands of the heir less the ex- pense of a useless and vexatious ad- ministration. At all events, a clear case must be shown, and, in order to show such a case, it is necessary to aver, among other things, that the 26 INDIANA PROBATE LAW. § 24a But such agreements are not, however, favored by the courts, and if made unfairly, or in disregard of the rights of any one in- terested in the estate, they may be set aside by the subsequent ap- pointment of an administrator." The better rule is to settle the estate according to the formali- ties prescribed by the law. While it is true that if there are no claims due the estate to collect, or if there should be, and the par- ties owing them are willing to pay them to the heirs, and if the heirs should pay all the debts of the decedent, an administration mav be dispensed with; yet if the decedent owned real estate, or left minor heirs, it is best to have an administration and by so doing avoid all future trouble. § 24a. No administration — Heir's rights. — The general rule is that an administrator or executor alone can maintain an action for the recovery of the personal property of a deceased per- son, or for a debt due to his estate at the time of his death. That rule prevails in this state with the single exception that where there is no administrator or executor to prosecute the action, and no debts to be paid by the estate, the heirs may prosecute the ac- tion. But to be successful in such an action the heirs must allege and prove every necessary fact to give them a right to maintain such action. ^^ As the claims of creditors are paramount to the rights of the heirs, it is necessary, in an action brought by heirs to recover a debt due an ancestor to allege and prove that the debts of the an- cestor have been paid, and that the estate has been settled, or that no administration was had thereon.^^ There is sound reason for this rule. So long as there is an administrator he is entitled to re- cover all the debts due the estate, besides the heirs can have no mother's estate was not administered Schneider v. Piessner, 54 Ind. 524; upon." Finnegan v. Finnegan, 125 Ind. 262, "Gale V. Corey, 112 Ind. 39, 13 N. 25 N. E. 341. E. 108, 14 X. E. 362; Carter v. Green- '' Magel v. Milligan, 150 Ind. 582, wood, 5 Jones Eq. (N. Car.) 410; 50 N. E. 564, 65 Am. St. 382; Hall v. Cochran v. Thompson, 18 Texas 652. Brownlee, 28 Ind. App. 178, 62 N. E. "Ferguson v. Barnes, 58 Ind. 169; 457. § 25 LETTERS OF ADMINISTRATION. 2/ right to sue for and recover debts due the estate when such amounts may be needed to pay creditors of the estate. One of the essential elements of an action of this kind by an heir is the fact that there is no administration on the estate, for the reason that on the death of the ancestor the personal property of a decedent goes to his personal representatives.^*^ Then again persons indebted to the estate, if there was no administration, or no averment and proof of none, would be at a loss to know who was entitled to receive and receipt for the money due the estate, and the court in many cases, would experience difficulty in order- ing a proper distribution, for the amount due each heir would de- pend upon such showing, together with proof of the number and names of the heirs entitled to such distribution.^' § 25. Where granted, — Letters of administration shall be granted in the county where, at his death, the intestate was an inhabitant; where, not being an inhabitant of this state, he leaves assets; where, not being an inhabitant and dying out of the state, he leaves assets; where, not being an inhabitant, he dies out of the state, not leaving assets in any county thereof, but assets of such intestate shall afterward come into it ; but where, not being an in- habitant, he shall die out of the state, leaving assets in several counties, or assets of such intestate shall, after his death, come into several counties, letters may be granted in any one of the counties in which such assets may be at the time of his death, or into which they come thereafter ; and the administration first law- fully granted shall extend to all the estate of the intestate, and exclude the jurisdiction of administration in the same estate in all other counties.^® This statute in practically its present form has been the law of this state since 1843.^^ Where a person dies intestate leaving personal property else- where than at the place of his domicile, the probate court of that place, where the property is, may assume jurisdiction without re- ^'^Merchants Nat. Bank v. McClel- '' Burns' R. S. 1908, § 2743. Ian, 40 Ind. App. 1, 80 N. E. 854. '' R. S. 1843, § 92. ^' Finnegan v. Finnegan, 125 Ind. 262, 25 N. E. 341. 28 INDIANA PROBATE LAW. § 2^ gard to the question of domicile. There must, however, be a showing of property, or of debts to justify the appointment of an administrator, but the character of the property is immaterial.^*' By the first subdivision of the above statute there is no condi- tion annexed to the power to grant letters of administration, other than that the intestate must have been an inhabitant, at the time of his death, of the county wherein letters have been applied for. By this subdivision the intestate is not required to have assets. This clause stands alone and is in no manner connected with or dependent upon the other clauses of the statute."^ But where the deceased intestate was not a resident of this state, at the time of his death, and no assets belonging to his es- tate are in this state at the time of the application for letters, no administration can properly be granted upon such estate; but if the letters are nevertheless issued, such act is coram non judice and void, and will in a proper proceeding be revoked."" Proof of some kind must be made that the person upon whose estate administration is asked is dead. This is a jurisdictional fact about which the court should be informed for there can be no valid administration upon the estate of a living person, and if ad- ministration should be granted in such a case it would be invalid. It is true that an unexplained absence for a period of years may justify an administration upon the estate of such absentee but au- thority for such proceeding is found in a special statute, and not under the one here considered. It must also be made to appear that the decedent died intestate. An intestate is one who at death leaves no valid will as to either his real or his personal property. If he leaves a will disposing of either class of his property and not the other, or any part of his property and not all it is a case of partial intestacy. There is a presumption of law in favor of intestacy, but no such presump- tion in favor of partial intestacy.^' =" Wyman v. Halstead, 109 U. S. Co. v. Reeves, 8 Ind. App. 667, 35 N, 654, 27 L. ed. 1068, 3 Sup. Ct. 417. E. 199. "^Toledo &c. R. Co. v. Reeves, 8 ^ Stokesberry v. Reynolds, 57 Ind. Ind. App. 667, 35 N. E. 199. 425 ; Mortgage Trust Co. v. Moore, "Jeffersonville &c. R. Co. v. 150 Ind. 465, 50 N. E. 72; Korf v, Swayne, 26 Ind. 477; Toledo &c. R. Gerichs. 145 Ind. 134, 44 N. E. 24. § 26 LETTERS OF ADMINISTRATION. 29 Jurisdiction is in the county of the decedent's domicile at the time of his death if he was an inhabitant of this state, and letters of administration issued upon his estate in any other than that county are voidable and may be revoked upon the application of any party in interest. Letters issued in the wrong county are not void and so long as they stand unrevoked other letters may not issue even in the proper county.^*. § 26. Statute must be complied with. — Authority to grant letters of administration is wholly statutory and a compliance by the courts, with the provisions of the statute, set out in this sec- tion, is necessary in granting letters of administration, otherwise an appointment made thereunder would be void. And where let- ters of administration are issued in a county where they are not authorized by statute, or where letters so issued directly contra- vene the express provision of the statute, the court in which they are issued may, upon its own motion, institute proceedings to set them aside, or it may be done by any person interested in anywise in the estate, or upon the suggestion of an amicus curiae. The jurisdiction of the court over the subject is derived from these provisions of the statute, and can only be exercised under the cir- cumstances and in the cases there provided for.-^ Where an intestate was domiciled and died outside of this state, no valid grant of letters of administration upon his estate can be made in this state, unless such intestate left assets here or assets belonging to him have come into this state after his death. ^^ § 27. Meaning of assets. — By the term assets used in this statute is meant assets of the intestate, and includes property, '* Razor v. Mehl, 25 Ind. App. 645, "Razor v. Mehl, 25 Ind. App. 645, 57 N. E. 274, 58 N. E. 734; Cunning- 57 N. E. 274, 58 N. E. 734; Jeflferson- ham V. Tuley, 154 Ind. 270, 56 N. E. ville &c. R. Co. v. Swayne, 26 Ind. 27; Coltart v. Allen, 40 Ala. 155, 88 477; Croxton v. Renner, 103 Ind. 223, Am. Dec. 757; Woerner Am. Law 2 N. E. 601; Williams v. Dougherty, Admin., § 268; Rice Am. Prob. Law, 39 Ind. App. 9, 78 N. E. 1067. 337; Williams v. Dougherty, 39 Ind. =^ McCord v. Thompson, 92 Ind. App. 9, 78 N. E. 1067 ; Soules v. Rob- 565. inson, 158 Ind. 97, 62 N. E. 999, 92 Am. St. 301. 30 INDIANA PROBATE LAW. § 2"] rights or choses in action held by or belonging to the intestate at the time of his death, and which, as a part of his estate, his ad- ministrator is entitled to, in the due administration of the estate, for the payment of debts.-' A right of action under the statute for damages against a rail- road company for causing the death of an intestate, is not assets within the meaning of this section; and where such damages are claimed as the only assets of the estate, letters issued for the pur- pose of such administration are void, and will be revoked upon an application for that purpose by the railroad company.^^ • But this rule is applied only in those cases where the jurisdic- tion of the court to appoint an admini.strator depends solely upon the question of assets of the intestate, and where such intestate was at tlie time of his death a nonresident of this state. In cases where the person whose death was wrongfully caused was a resi- dent of this state at the time of his death, valid letters of admin- istration may be issued upon his estate for the purpose of prose- cuting the action for damages in such case authorized, although such intestate left no assets in this state, and none have come in since. "^ Where the fact that assets of an intestate, who was a nonresi- dent at the time of his death, have been brought into this state after his death, is relied on to give a court jurisdiction to grant letters of administration upon his estate, it must appear that such assets were brought into some county of this state in good faith. ■'Toller on Executors 137; Jeffer- is founded on a new grievance, name- sonville &c. R. Co. v. Swayne, 26 ly, causing the death, and is for the Ind. 477. injury sustained thereby, by the widow ^'Jeffersonville &c. R. Co. v. and children, or next of kin of the Swayne, 26 Ind. 477. In this case the deceased, for the damages must in- court had under consideration the ure to their exclusive benefit. They question whether "assets" of a dece- are recovered in the name of the per- dent within the meaning of this section sonal representative of the deceased, would include a claim for damages but do not become assets of the es- against a carrier for causing the death tate." of such decedent, and in disposing of =" Toledo &c. R. Co. v. Reeves, 8 the question the court said : "The Ind. App. 667, 35 N. E. 199. right of action created by the statute § 28 LETTERS OF ADMINISTRATION. 3 1 If property of an intestate has been brought into this state from elsewhere merely to give a colorable jurisdiction, the court should refuse to grant letters.^" § 28. Assets in different jurisdictions. — In the case ot Borer v. Chapman, 119 U. S. 587, it was held, that an adminis- tration of the assets of a decedent situated in a state other than that of his domicile, under the laws and the courts of such other state, is merely ancillary ; and although the statutes of such state and the proceedings under them may purport to bar all claims against the estate of the decedent, assets finally distributed there, and brought into the state of the domicile of the deceased by his executor or legatee, remain assets in the state of the domicile for the payment of any unpaid creditors choosing that forum; and such assets are impressed with a trust which such a creditor has the right to have administered for his benefit. But it has been decided that property legally situated within one state, at the time of the death, and already disposed of and administered in its courts and in accordance with its laws, cannot be affected by administration, or the want of it, in another state to which a legatee carries property delivered to him by order of the probate court where the estate was administered.^^ Dift'erent administrators, deriving authority as such from dif- ferent sovereignties, are independent of each other, and acquire rights over dift'erent assets. There can be no privity between them. Each is accountable to the tribunal under which he exer- cises his trust, and administration upon assets which have prop- erly come to the hands of an administrator under his appoint- ment, and for which he is accountable to such legal tribunal, can- not be impaired or abridged by a grant of administration to an- other person in another state. '" Schouler, Extrs. & Admrs. 36. in the country of the testator's domi- " Wells V. Wells, 35 Miss. 638; cilc, or there are other creditors there Saurez v. Mayor, 2 Sandif. Ch. whose claims remain unsatisfied, the (N. Y.) 173. In Spraddling v. Pip- tribunals of the country in which the kin, 15 Mo. 118, it is said: "But, assets are found will direct them to after the claims of creditors are satis- be remitted to the country of the fied, and when the distributees reside domicile for further administration.' ;^2 INDIANA PROBATE LAW. § 29 § 29. Ancillary administration. — This i^ives rise to the doc- trine of ancillary administration. The word ancillary means sub- ordinate to or subservient. Ancillary administration is a local and subordinate administration of such part of the assets of a de- cedent as are found within a state other than that of his domicile, and which the law of the state where they are found requires to be collected under its authority in order that they may be applied first to satisfy the claims of its own citizens, instead of requiring the latter to resort to the jurisdiction of the principal administra- tion to obtain payment, the surplus, after satisfying such claims, to be remitted to the place of the principal administration. ^- The doctrine of ancillary administration grows out of the com- mon law rule that administrators could not sue or be sued except in the country from which tlicir appointment was derived. In theory our various state jurisdictions are foreign to each other, but in most of them, as in ours, are statutes providing that for- eign executors and administrators may act in the local jurisdic- tion, sue and be sued and perfonn almost all things imposed by the local jurisdiction upon administrators of its own appointment; and as it is the general policy of the law to have estates adminis- tered upon as simply and speedily as possible, there no longer ex- ists the necessity for ancillary administration that formerly did. >. For these reasons ancillary administrations are not favored in the law and courts will avoid appointing such an administrator unless it appears that such appointment is actually necessary to protect the interests of citizens resident in the state where the ap- pointment is asked. ^^ But where several administrations have been granted it then becomes of importance to understand the legal relations and rights as between the ancillary and the principal administration. It is the rule without exception, that the state or country of the decedent's domicile at his death is the place of the principal ad- ministration, all other administrations are ancillary or subordi- nate to this. That is, the ancillary administration is subordinate ^"Century dictionary. "Mn re, McCreight, 6 X. P. (Ohio) 481. § 30 LETTERS OF ADMIXISTRATION. 33 or auxiliary to the original one in so far as the collection and dis- tribution of the assets in that jurisdiction is concerned, but as to the manner of such collection and the application of them to the payment of the debts within the jurisdiction of the ancillary ap- pointment, such ancillary administration is entirely independent of the original one. It is the purpose of an ancillary administra- tion to apply the assets found in that particular state for the bene- fit of resident creditors before permitting the funds of the dece- dent to be remitted out of the jurisdiction of such state/* § 30. Powers and duties of ancillary administrator. — Each portion of the estate should be administered in the state in which possession is taken pursuant to lawful authority. And when ad- ministrations upon the estate of a decedent are granted in differ- ent states, that granted in the state in which the intestate was domiciled is the principal or primary administration, and the others are ancillary." The administration in each state is controlled exclusively by the laws of that state. The administration in one state is wholly independent of that in any other state;" nor does the fact that administration has been granted in one state have any effect to impair or abridge an administration granted in another;" nor is there any privity between the different administrations." Each administration is limited to the property situated in its own jurisdiction," nor can a judgment against one administra- •* Swearingen v. Morris, 14 Ohio St. Stacy v. Thrasher, 6 How. (U. S.) 44, 424; Williams v. Welton, 28 Ohio St. 12 L. ed ZZ7 ; Hill v. Tucker, 13 How. 451. (U. S.) 458, 14 L. ed. 223; Creswell "McCord V. Thompson, 92 Ind. 565. v. Slack, 68 Iowa 110, 26 N. W. 42. * Sherman v. Page, 85 N. Y. 123. ** McCord v. Thompson, 92 Ind. "Naylor v. Moody, 2 Blackf. (Ind.) 565; Reynolds v. McMullen, 55 Mich. 247; Henderson v. Clarke, 4 Litt. 568, 54 Am. Rep. 386. It is the object (Ky.) 277; Grant v. Reese, 94 N. Car. of the ancillary administrator to ad- 720; Aspden v. Nixon, 4 How. (U. minister the assets found within the S.) 467, 11 L. ed. 1059; Pond v. state and remit the proceeds to the Makepeace, 2 Met. (Mass.) 114, Mc- place of the principal administration. Lean v. Meek, 18 How. (U. S.) 16, But if there are creditors, the courts IS L. ed. 277. having control of such ancillary ad- * Taylor v. Barron, 35 N. H. 484; ministration will not allow the estate 3 — Pro. Law. 34 INDIANA PROBATE LAW. § 30 tor in one jurisdiction be a lien upon or affect assets under the control of an administrator in another jurisdiction. ^° After the collection and reduction of the assets to money, and the payment of all the debts and liabilities of the estate at the place of the ancillary administration, such ancillary administra- tion then, as to distribution of the surplus, if any, becomes sub- ordinate to the law of the place of the principal administration in so far at least as the proceeds arising from the personal prop- erty is concerned. The rule being that personal estate shall be distributed to the heirs according to the law of the domicile of the decedent." It is only at the time of distribution that the law of the place of the primary administration is to be taken into con- sideration by an ancillary administrator. Such law then becomes important as the disposition of the pro- ceeds of the personal property and the proceeds of the real estate dift'er widely. If the assets in the hands of the ancillary adminis- trator are derived from the sale of real estate, they are impressed to be remitted to the foreign state un- til such creditors are first paid. If the estate is solvent such creditors are paid in full, and if it is not they are paid pro rata, taking the entire estate and the entire liabilities into account. Williams v. Welton, 28 Ohio St. 451. "Low V. Bartlett, 8 Allen (Mass.) 259; Judy v. Kelley, 11 111. 211, 50 Am. Dec. 455 ; Rentschler v. Jamison, 6 Mo. App. 135. The judgment of the court of one state against the admin- istrator of a deceased person ap- pointed by the courts of that state which establishes a claim against such decedent's estate, is not even prima facie evidence of the validity of the claim as against lands situated in an- other state. McGarvey v. Darnall, 134 111. 367, 25 N. E. 1005, 10 L. R. A. 861 ; Smith v. Smith, 174 111. 52, 50 N. E.1083, 43 L. R. A. 403. A judgment recovered against the administrator of a deceased person in one state is no evidence of a debt in a subsequent suit by the same plaintiff in another state, either against an administrator, whether the same or a different person appointed there, or against any other person having assets of the deceased. Johnson v. Powers, 139 U. S. 156, 35 L. ed. 112, 11 Sup. Ct. 525; Stacy v. Thrasher, 6 How. (U. S.) 44, 12 L. ed. Z2>7. It cannot even be prima facie evidence of a debt. Braithwaithe v. Harvey, 27 L. R. A. 101. The allowance of a claim in another juris- diction against a decedent's estate does not place the party in the posi- tion of a judgment creditor against the same estate in local courts. Strauss v. Phillips, 189 111. 9, 59 N. E. 560; Jones v. Jones, 15 Te.x. 463, 65 Am. Dec. 174; Slauter v. Chenowith, 7 Ind. 211. " Russell V. Madden, 95 111. 485. § 31 LETTERS OF ADMINISTRATION. 35 with the character of real estate and their distribution is con- trolled by the law of the place where the real estate is situated.*^ § 31. To whom letters shall be granted. — At any time after the death of an intestate, the proper clerk or court having exam- ined the person applying for letters and such persons as may be deemed proper to be examined, under oath, touching the time and place of the death of the intestate, whether he left a will, and concerning the qualifications of such person, and there being no such will, shall grant letters of administration, in their order — ■ 1st, to the widow or widower: 2d, to the next of kin; 3d, to the largest creditor applying and residing in the state; 4th, if no per- son entitled to administer shall apply within twenty days after the death of the intestate, the clerk or court shall appoint a competent inhabitant of the county, to whom letters shall issue. *^ After the lapse of twenty days from the death of the intestate, letters may issue to any competent person without preference ; but letters issued before the expiration of twenty days, to any person other than the widow, without her relinquishment of her right to administer, while not void are voidable, and upon her application such letters will be revoked and granted to her.** The relinquish- ment of her right to administer should be in writing and filed with the clerk. And this same rule will apply to the widower. Among persons equally entitled to the administration, the court should exercise its discretion and appoint the most suitable. And in considering the question of suitableness the court should look to the moral fitness and integrity, business experience, solvency or insolvency, sex, adverse interest, etc., of the applicant. A *• Woerner Am. Law Admin., §§ wrong party and then commit it to the 374, 375. right, the second grant is a repeal of " Burns' R. S. 1908, § 2742 ; Jones the first without any sentence of revo- V. Detchon, 91 Ind. 154; Baugh v. cation ; but in other cases it is held that Boles, 66 Ind. 376. the first is not avoided except by ju- ** Mills V. Carter, 8 Blackf. (Ind.) dicial sentence. And the practice is 203. Toller on Executors, 126: "Some to call in and revoke the first admin- authorities maintain that if the ordi- istration before the second is grant- nary commit administration to the ed." 36 INDIANA PROBATE LAW. §31 large discretion is vested in the court, and unless manifestly wrong its conclusion will not be disturbed.*' Personal suitableness is a very important element, whether in determining the appointment as between the widow and next of kin of an intestate, or when one or more next of kin alone are con- cerned." The appointment of an administrator must be left largely to the sound discretion of the trial judge. As he has direct control over the estate he can better judge of the capability of the parties applying for letters, and will know who will best serve the inter- est of the estate, and so long as there is no abuse of his discretion, his exercise of it will not be interfered with." In Wallis v. Cooper, 123 Ind. 40, 23 N. E. 977, the court said: "The court has a wide discretion in matters concerning the appointment of administrators and the appellate court will not control that discre- tion nor interfere with its exercise except where it has been abused." As the above statute, however, is mandatory, the court's dis- cretion is limited in choice to some one in the order of preference, and if the application is made the court can only look to the ques- tion of qualification.*® After the lapse of twenty days from the death of a decedent, V any creditor of such decedent has the right to require the ap- ^ pointment of an administrator, and it is not necessary that he take such appointment on himself. Prior to the expiration of the twenty days, however, creditors are in the class of preferred per- sons and entitled to demand appointment for themselves, pro- vided no one with a right superior to theirs has applied. It is the duty of an heir, or of a creditor, who may not care to take administration of the estate on himself, to see that an admin- istrator is appointed after the expiration of the twenty days, but such appointment may then be made by the proper officer as a « Wallis V. Cooper, 123 Ind. 40, 23 "Bentley v. Jarrell, 41 Ind. App. N. E. 977. 586, 84 N. E. 548. ** Schouler Extrs. & Admrs. 137. " Shrum v. Naugle, 22 Ind. App. 98, 53 N. E. 243. § 32 LETTERS OF ADMINISTRATION. 37 matter of law irrespective of whether an application is made by any one or not. Neither the creditor nor heir may care to take upon himself the duties, obligations, and hazards incident to the collection of the assets of an estate and their proper distribution, but either has the right to compel the appointment of an administrator. If there is no appointment, or no application made for one, within the twenty days, then the duty devolves upon the proper court or clerk to appoint some one, and the person so appointed need not belong in any of the preferred classes." § 32. Same — Statute mandatory. — The above statute com- mands, not merely directs, that letters shall be granted to the next of kin, and unless there is some proper reason for disregarding it a court w^ould not be justified in denying a kinsman's petition, and conferring the administration upon a stranger."^^ If the next of kin do not select an administrator any creditor may do so, but a failure on the part of those interested to select and have an ad- ministrator appointed does not warrant the presumption that the decedent left no personal property."^' The proper clerk has au- thority to grant letters of administration in vacation where the right to such administration is not controverted, and the court is bound to ratify such appointment unless some valid objection is made to it." This statute contemplates that the clerk shall keep court open during vacation and make such appointment ; but by its express * Hildebrand v. Kinney, 172 Ind. the county,' as a duty imposed by ex- 447. 87 N. E. 832. press statute." "The creditor applying within the '" Hayes v. Hayes, 75 Ind. 395. twenty days signifies his willingness " Lovering v. King, 97 Ind. 130. In to assume the duties and obligations Wilson v. Davis, Zl Ind. 141, the of the trust, and he must be appointed court says : "The statute secures to if otherwise within the statute; but the creditor the right to take out let- after the twenty days he may procure ters, if no preferred party shall do an appointment without assuming any so within a limited time.' such obligations himself, by placing "Brown v. King, 2 Ind. 520. In upon the court or clerk the duty of Lee v. Ice, 22 Ind. 384, the court held appointing 'a competent inhabitant of that where letters were granted by 38 INDIANA PROBATE LAW. 32 terms the clerk is limited in making such appointment to residents of the county where none entitled to preference make application for letters within the twenty-day period." This statute is mandatory, and where one entitled by prefer- ence applies within the time specified, and is eligible and qualified, the court has no discretion to refuse his request and confer the appointment on a stranger.^* Letters must be granted to those whom the statute declares en- titled thereto, the widow, the next of kin, the largest creditor, if he be a resident of the state, and regardless, too, whether they are residents of the county or not.^^ Letters of administration cannot be legally granted and con- firmed while other letters granted and confirmed to another ad- ministrator remain in full force and unrevoked.'"'" the clerk in vacation, the court at the next succeeding term might re- voke the same without notice to the appointee of the clerk. '' Kinnick v. Coy, 40 Ind. App. 139, 81 N. E. 107. "Mills V. Carter, 8 Blackf. (Ind.) 203; Hays v. Vickery, 41 Ind. 583; Jones V. Bittinger, 110 Ind. 476, 11 N. E. 456; Andis v. Lowe, 8 Ind. App. 687, 34 N. E. 850. ■^ Kinnick v. Coy, 40 Ind. App. 139, 81 N. E. 107; Shrum v. Naugle, 22 Ind. App. 98, 53 N. E. 243. '"Joaes V. Bittinger, 110 Ind. 476, 11 N. E. 456. The court in Landers V. Stone, 45 Ind. 404, says: "When there is no will, there must be an ad- ministrator. There cannot be, in the same estate, both an executor, or an administrator with the will annexed, and an administrator. The executor is succeeded by the administra- tor with the will annexed, and the administrator with the will annexed is succeeded by the adminis- trator de bonis non, with the will an- nexed. They all act under and in pursuance to the will. When there is no will, an administrator is appointed and is succeeded by an administrator dc bonis non, and they act under and in pursuance of the statute. * * * That is to say when there is a will there shall be either an executor or an administrator with the will an- nexed, and his authority shall extend to and embrace all the property of the decedent, without reference to whether it is all disposed of by the will or not ; and when there is no will, there is simply an administrator, whose authority extends to and em- braces all the property of which the decedent died possessed." In the case of Jones v. Bittinger, 110 Ind. 476, 11 N. E. 456, the court held that although letters were grant- ed to a person not entitled thereto before the expiration of twenty days after the death of a decedent, yet letters could not be granted to the proper person while the letters im- properly granted were unrevoked. § 33 LETTERS OF ADMINISTRATION. 39 § 33. Void and voidable letters. — Letters of administra- tion granted out of the order prescribed by this statute, are not void, but at most are only voidable, and until revoked or set aside in a proper proceeding brought for that purpose, no error is com- m.itled in refusing to grant letters to another person, although such person's right may be prior to that of the one to whom such letters have been granted." As a general rule the court granting letters of administration will be presumed to have lawfully exercised its jurisdiction, and its order made in such matter cannot be attacked collaterally.^^ But where it appears that the court had no jurisdiction by reason of the non-residence of the intestate, or because such intestate had no property within the jurisdiction of the court, or for any other reason, such appointment is null and void and may be attacked even in a collateral proceeding."'" And a grant of letters which is originally void acquires no validity from acquiescence and lapse of time.*'" And where such letters are void for want of jurisdic- tion, a court that has jurisdiction may grant letters of adminis- tration, though the former letters have not been revoked.'^' Letters of administration cannot be legally granted and con- firmed while letters testamentary, which have been granted to one named in a will as executor, remain in force. The granting of let- ters testamentary, or of administration, is a judicial act; and where the court that granted them had jurisdiction, individuals and courts are bound to respect the authority of such letters." An appointment must conform strictly to the provisions of the statute, or the letters granted will be void.^^ But while the ap- ^^ Mills V. Carter, 8 Blackf. (Ind.) Wright, 18 Ga. 173; Paul v. Willis, 69 203; Hays v. Vickery, 41 Ind. 583; Tex. 261, 7 S. W. 357; Jeffersonville Jones V. Bittingcr, 110 Ind. 476, 11 N. &c. R. Co. v. Swayne, 26 Ind. 477. E. 456. "^Holyoke v. Haskins, 5 Pick. ** Ferguson v. State, 90 Ind. 38; (Mass.) 20, 16 Am. Dec. 372. Jones V. Bittinger, 110 Ind. 476, 11 ""Ex parte Barker, 2 Leigh (Va.) N. E. 456; Lee v. Templeton, 11 Ind. 719. 315. ""Ray v. Doughty, 4 Blackf. (Ind.) "People's Sav. Bank v. Wilcox, 15 115; Landers v. Stone, 45 Ind. 404. R. I. 258, 3 Atl. 211, 2 Am. St. 894; ^^ Jeffersonville &c. R. Co. v. Sigourney v. Sibley, 22 Pick. (Mass.) Swayne, 26 Ind. 477. 507, II Am. Dec. 762; Griffith v. 40 INDIANA PROBATE LAW. § 34 pointment of an administrator may be irregular, and in a direct proceeding for the purpose of revoking his letters such appoint- ment would be declared void, yet such appointment cannot suc- cessfully be attacked in a collateral proceeding."* The removal of an administrator from this state after he has been appointed and qualified authorizes the courts to vacate his trust.®** § 34. Who is to be preferred. — The preference within the twenty days is always first to the widow or widower of the in- testate, then to the next of kin. Who are to be considered as next of kin within the meaning of the statutes is not so clear. The better order would seem to require that letters be granted, first to the children of the intestate, if any, who are of legal age and properly qualified. Where none of the children desire to ad- minister, or are not qualified, then if the intestate's parents are living, letters should be granted one of them under the same con- ditions as to the children, and after the parents to the brothers or sisters of the intestate. The English rule is, first, children and their lineal descend- ants to the remotest degree ; second, the parents of the deceased ; third, brothers and sisters; fourth, grandfathers and grand- mothers ; fifth, uncles or nephews, great grandparents, and sixth, cousins. This same order generally obtains throughout this country.®'' This statute which fixes the order of preference in the right to administer upon a decedent's estate is founded upon the proposi- tion that the heirs and the creditors are interested in the estate, and that in a sense it is their property that is to be administered upon, for after the debts and liabilities of the decedent's estate are paid, the heirs own the property, and until their debts are paid the creditors have such right and interest in a decedent's property as permits them to compel its application to the payment of their debts. For these reasons the statute gives to those per- "^ Ferguson v. State, 90 Ind. 38. "" Williams Extrs. 421 ; Schouler "= Bums' R. S. 1908, § 2742. Extrs. & Admrs. 133. § 34 LETTERS OF ADMINISTRATION. 4I sons a preference in the administration.''' And in so far as the order of preference is concerned the statute is mandatory and leaves no discretion in the court as to the class from which a se- lection must be made, if the application is presented within the time.*'® It has been held that a guardian, whose ward, if of age, would be entitled to letters of administration, will be entitled to such let- ters in the right of such ward, the court saying: "It is the rule at common law that the trustee or guardian of an infant, or non compos, who would otherwise be entitled to ad- minister upon an estate, was entitled to administer in the right of his ward or cestui que trust, and in every case in which the ques- tion has arisen it is uniformly held that the guardian of an infant, who, if of age, would be entitled to administer upon an estate, is entitled as of right to such administration. The question has never heretofore arisen in this state, but we feel impelled to hold, in unison with the current of authorities upon the question, that in this state, the guardian of an infant who, if of age, would be entitled to administer, is in right of his ward entitled to letters of administration in preference to strangers; and that he stands, so far as the question of his right to administer upon the estate is concerned, in the shoes of his ward, and to that extent represents his ward.""'' •^ Kinnick v. Coy, 40 Ind. App. 139, priority." Cooper v. Cooper, 43 Ind. 81 N. E. 107; Cooper v. Cooper, 43 App. 620, 88 N. E. 341; Curry v. Ind. App. 620. 88 X. E. 341. Plessinger, — Ind. App. — , 96 N. E. •^Andis V. Lowe, 8 Ind. App. 687, 190; Shrum v. Naugle, 22 Ind. App. 34 X. E. 850. In this case the court 98, 53 X. E. 243. said : "Other things being equal, it ^ Kinnick v. Coy, 40 Ind. App. 139, is doubtless the policy of the law that 81 X. E. 107; Mowry v. Latham, 17 where there is no widow or widower R. I. 480, 23 Atl. 13 ; Boyd v. Cloud, of the decedent, and there are broth- 5 Pen. (Del.) 479, 62 Atl. 294; Lang- ers and sisters, the former shall have an v. Bowman, 12 S. & M. (Miss.) the prior right to administer upon 715. the estate." * * * It is a general principle governing "But in order to bring the appli- the granting of letters of administra- cant for revocation and appointment tion, that the administration should within the letter and spirit of the be committed to those who have a statute, he must show in his petition beneficial interest in the property to the facts that give him the right of be administered upon. 1 Woerner, 42 INDIANA PROBATE LAW. § 35 ^ 35. Right of husband or wife. — At common law a hus- band being entitled to all his wife's personal estate was deemed the proper person to administer on her estate,'" and this prefer- ence is, by statute, maintained in this state. This preference would, perhaps, be defeated by such misconduct of the husband as would bar him from taking any part of tlic wife's estate under the law."' And he would, perhaps, also be barred from such ad- ministration by an antenuptial agreement by which he has de- prived himself of any interest in his wife's estate.'" Upon the husl)and's estate, the administration is. by preference, first to the widow. She must, however, actually be his widow. If there has been no valid marriage, or has been an absolute divorce, she would have no right to the administration.'^ A widow's right to administer may also be barred by an ante- nuptial agreement.'* The mere abandonment by one spouse of the other does not de- stroy the right to administer." A marriage which is absolutely void confers no right upon either party to it ; but if the marriage is only voidable and has not been avoided before death, the surviving spouse would have the right to administer.'*' Amer. Law of Admin. (2d. ed.), hand, suffer the consequence of waste, § 235. It is said in 1 Williams improvidence or mismanagement, have Executors (7th Am. ed.) 512: "It the highest interest and most influen- has always been considered, both in tial motive to administer the property the common-law and spiritual courts, correctlj'. that the object of the statutes of ad- ™ Schouler Extrs. & Admrs. 127. ministration is to give the manage- ''Burns' R. S. 1908, §§ 3034, 3035, ment of the property to the person 3036. who has the beneficial interest in it." ''Bray v. Dudgeon, 6 Munf. (Va.) The paramount object and purpose of 132; Fowler v. Kell, 14 S. & M. our statute, and of all statutes, in fix- (Miss.) 68; Ward v. Thompson, 6 ing the order of preference in which Gill & J. (Md.) 349. letters of administration shall be " Byrnes v. Dibble, 5 Redf. (N. Y.) granted, is to secure to those having 383; O'Gara v. Eisenlohr, 38 N. Y. a beneficial interest in the property to 296; Odiorne's Appeal, 54 Pa. St. 175, be administered upon the right to ad- 93 Am. Dec. 683n. minister. It is to be supposed that '' IMaurer v. Maurer, 5 Md. 324. those who will reap the benefit of a " Coover's Appeal, 52 Pa. St. 427; wise, speedy and economical adminis- Nusz v. Grove, 27 Md. 391. tration of the estate, or, on the other '"Browning v. Reane, 2 Phillim. 69; § 36 LETTERS OF ADMINISTRATION. 43 § 36. The right of others. — As a rule, the right of adminis- tration follows the right of property, and the law usually selects for the purpose of administration persons in their order of pre- ference for distribution, so if neither the widow or widower of a decedent is qualified to administer, or have renounced the right, the preference is to the next of kin in the order above set out. Where, for any reason, such administration cannot be granted to the nearest of kin, the law will select the next in order. After the next of kin preference is given to the largest creditor applying who is a resident of this state. But where both apply for letters, a distributee must always be preferred to a creditor." A claim which has accrued after the death of the decedent, as for funeral expenses, is sufficient to entitle one to the right to ad- minister;" but a debt assigned after the death of the decedent does not entitle the assignee to such right.'" The preference above outlined is for only twenty days after the death of the intestate. After the lapse of such time, if no appli- cation is made by those entitled, any competent person who is an inhabitant of the county may be appointed.-"' As the right to administer follows the right to the personal property, a creditor is entitled to preference in administration over a relative of the decedent, who although he may be of next of kin to such decedent, has no interest in the estate to be admin- istered upon.^^ A creditor being appointed may associate with himself in the administration any other person or persons found competent un- der the statute, and such choice will not be confined to creditors nor is it limited to persons having precedence.^" Parker's Appeal, 44 Pa. St. 309; White ''Cooper v. Cooper, 43 Ind. App. V. Lowe. 1 Redf. (N. Y.) 376. 620, 88 N. E. 341. "Hoxall V. Lee, 2 Leigh (Va.) ^= Brown v. King, 2 Ind. 520. 267. Cases might arise where the size " Lents V. Pilcrt, 60 Md. 296, 45 and extent of the estate to be admin- Am. Rep. 112 istered, or the conflicting interests of "Pearce v. Castrix, 8 Jones L. (N. heirs and creditors, might justify or Car.) 71. demand the appointment of some one "" Bowen v. Stewart, 128 Ind. 507, 26 to act with the person who is by law X. E. 168, 28 N. E. 11. first entitled to letters of administra- 44 INDIANA PROBATE LAW. § 37 In case of a joint administration by two or more administra- tors or executors, the acts of one in respect to the administration are deemed to be the acts of all and are valid. *^ There is no law which expressly forbids the appointment of the same person as administrator or executor of two or more estates or wills, nor is there any provision requiring the resignation of such officer or a revocation of his letters in such case because of conflicting interests, or of claims in favor of one estate and against the other. *** § 37. The right in the same degree. — If several of the same degree are entitled to letters the statute provides who may be pre- ferred. The statute reads: "If several persons of the same de- gree of kindred are entitled to administration, letters may be granted to one or more of them; but males shall be preferred to females, relatives of the whole blood to those of the half blood, and unmarried to married women ; and any other competent per- son may be associated in such administration, the person entitled thereto assenting. If a creditor apply for letters he shall prove the amount of his debt by affidavit filed with the court, and if two or more creditors are equally entitled the clerk or court shall de- cide who is to administer."^" It has been said that the court has a wide discretion in the ap- pointment of administrators, and in all other matters pertaining to settlement of decedents' estates, but this discretion is not so tion; but, in a large majority of cases, administration to her. The court we think it would be found upon in- could not without the assent of said vestigation, that, if the estate could widow associate any other person not be properly administered without with her in the administration of said an associate administrator, the ap- estate, but with her assent he may do pointment of the person first entitled so. We think it discretionary with by law to the appointment should the court whether or not a co-admin- have been refused in the first instance istrator be appointed in such cases, on the ground of incompetency. Shrum v. Naugle, 22 Ind. App. 98, 53 The widow, Lucy Shrum, having N. E. 243. applied for letters within twenty days ^ Herald v. Harper, 8 Blackf. after the death of her husband, she (Ind.) 170. being a competent person, the court ^ Wright v. Wright, 72 Ind. 149. could not refuse to issue letters of '' Burns' R. S. 1908, § 2744. 8 LETTERS OF ADMINISTRATION. 45 wide as to override the statutory rights of those entitled to admin- ister. The phrase ''next of kin" means those who are next of kin at the intestate's death and who would then inherit from him. The hw presumes that the person having the first and highest in- terest in the estate is the widow of the decedent, and that next to her in point of interest are the heirs who would inherit the estate, and that next to these are the creditors of the decedent.®*' § 38. Who not entitled to letters. — Xo letters of adminis- tration shall be granted to any person incompetent to serve as an executor ; and no such letters shall be granted to a married woman unless her husband file his consent thereto in writing with the clerk issuing the letters, which consent shall make him jointly, with her, resixDnsible for her acts in the premises.®^ Persons incompetent to serve as executors are — ist, those un- der twenty-one years of age; 2d, those who have been convicted of a felony ; 3d, those adjudged incompetent, habitual drunkards, or otherwise incapacitated.** A corporation cannot act as an administrator unless expressly authorized so to do by its charter or the law of its organization.*® Infancy is by these statutes made a disqualification, and the converse of this is perhaps true, and one in extreme old age should not be appointed. While our statutes nowhere make nonresidence a disqualifica- •* Cooper V. Cooper, 43 Ind. App. spendthrift, habitual drunkard, or 620. 88 X. E. 341. other person disqualified or unable '' Burns' R. S. 1908, § 2745. from any cause to manage their es- ■» Burns' R. S. 1908, § 2737. tate. "Thompson's Est., 33 Barb. (N. In the case of Bowen v. Stewart, Y.) 334; Porter v. Trail, 30 N. J. Eq. 128 Ind. 507, 26 N. E. 168, 28 N. E. 106; Georgetown College v. Browne, 73, the court in holding that it was 34 Md. 450. By § 10 of an act proper to appoint the treasurer of a approved March 4, 1893 (§ 5009, R. county as administrator of an estate S. 1894), corporations organized un- for the purpose of collecting taxes der such act are authorized to act as due from such estate to the county, administrator of any estate, executor said: "He was the representative of of any last will and testament of any an alleged creditor, that was but an deceased person, and as guardian of artificial person to whom letters of the person or estate of any minor, or administration could not issue." of the estate of any lunatic, imbecile, 46 INDIANA PROBATE LAW. § 38 tion, it would be only following the general policy of our courts to always give the preference to residents of our own state, for the appointee should be within the jurisdiction of the state to whose laws he owes his appointment. Where a person who has the first right to an administration re- nounces such right and requests the appointment of another per- son in his stead, the court is not bound to grant such request, but may exercise its discretion. Xor does the law favor an agree- ment, the consideration of which is the relinquishment by one person to another of a right to administer on the estate of an in- testate."*' As the appointment of an administrator does not rest upon the wishes of the deceased as does the appointment of an executor, the court has therefore a wider discretion in the appointment of the one than in that of the other, but in no case should the court appoint an unsuitable person or one who is legally disqualified. It has been held that a professional gambler was not a suitable person;"^ nor one who is an habitual drunkard;"- nor a reckless and improvident person ;^^ nor the mistress of the intestate;"* nor a convicted felon ;"^ nor an insolvent or bankrupt ;"" nor a person whose interests are adverse to the estate;" nor one indebted to the estate."® This statute forbids a married woman acting as administrator unless her husband consents thereto, and without his consent her appointment would be invalid. It is necessary that such consent should be in writing signed by him and filed with the clerk issuing the letters. The husband's consent to the wife acting as administrator does '"Bowers v. Bowers, 26 Pa. St. 74, " Plaisance Est. Mgr. (Cal.) 117. 67 Am. Dec. 398. ^^ O'Brien's Est., 67 How. Pr. (N, "McMahon v. Harrison, 6 N. Y. Y.) 503. 443. "^ Cornpropst's Appeal, 23 Pa. St. "'Elmer v. Kechele, 1 Redf. (N. 537. Y.) 472; Smith v. Moore, 3 How. "State v. Reinhardt, 31 Mo. 95; (Miss.) 40. Jones v. Whitehead, 66 Ga. 290. "'In re Cutting, 5 Dem. (N. Y.) "'Successor of Chaler, 39 La. Ann. 456; McGregor v. McGregor, 3 Abb. 308; Territory v. Valdez, 1 N. Mex. App. Dec. (N. Y.) 92. 533. § 39 LETTERS OF ADMINISTRATION. 47 not constitute him a co-administrator with her, nor give him any rights in the administration ; the office remains entire in the wife and she may sue without joining him in the action.^^ And should an unmarried woman, who has been appointed ad- ministrator, marry during the continuance of her trust as such, it then becomes necessary for her husband to file his written con- sent to her continuing to act and if he does not it becomes a cause for her removal/ § 39. Waiver or renunciation of the right. — No person can be compelled to take out letters of administration however perfect his right to do so may be. The right given by statute may be renounced, or the right may be waived by the neglect of the person to apply within the statutory time. It may also be waived expressly. A renunciation of one's right to administer should be made in writing and filed in the court having proper probate juris- diction. Such renunciation may be absolute and unqualified or it may be conditional. If made upon the condition that a certain person be appointed, and such person is not appointed the renun- ciation then becomes void." The court should make no appointment of one from a lower class until it has been made to appear in some way that those of the other class are in some way disqualified, or had waived or re- nounced their right to administer. § 40. Miscellaneous. — If letters of administration should be granted to one not entitled or to one who could not be legally *" Jenkins v. Jenkins, 23 Ind. 79. hart v. Rinchart, 27 X. J. Eq. 475. So ' Bums' R. S. 1908, § 2762. a widow, renouncing in favor of a " Compensation cannot be collected particular person, is not bound by the for introducing a person to another renunciation if this person is not ap- for the purpose of having the per- pointed. See § 92; McClellan's Ap- son introduced appointed administra- peal, 16 Pa. St. 110. And a widow tor. Swiggett v. White, 8 Bull. 22. renouncing her right as adminis- All the next of kin having renounced tratrix is, nevertheless, on the dis- in favor of the eldest among them, covery of a will, entitled to letters if he would find security, the appoint- cum testamento annexe, if the execu- ment of his nominee, on his failing to tors do not qualify. Brodie v. Mit- obtain security, was held void. Rine- chell, 85 Md. 516, Zl Atl. 169. 48 INDIANA PROBATE LAW. § 40 apfKDinted, all acts of such appointee within the scope of his au- thority, while such letters remain unsuperseded and unrevoked, will be as valid and binding as if such authority was undisputed.* While courts should not favor such applicants, yet the mere fact that a person applying for letters of administration can neither read nor write does not render him ineligible to such ap- pointment* No person will be allowed to apply for letters of administra- tion, nor object to their being granted to any one else unless it is made to appear that he is interested in the estate.^ In a contest as to the right of administration, there are strictly no plaintiffs or defendants. All the applicants are actors, and some may withdraw and others come in at any time during the progress of the cause." The statute does not regard a person whose financial interests may be adverse to the estate of a decedent as incompetent to serve as administrator upon the estate of such decedent ; on the contrary, a preference is given to the largest creditor after the next of kin; and ample provision is made for the protection of the estate when a question arises as to the adverse interest of an administrator who is a creditor of the estate he represents.'^ ^Ray V. Doughty, 4 Blackf. (Ind.) And it was held in this case that lis. where it was claimed that at the time * Gregg V. Wilson, 24 Ind. 227. of the death of a decedent he was in- ° Russell V. Hartt, 87 N. Y. 19. The debted to the county in which he re- fourth clause of § 2742, Burns' R. S. sided and in which his estate was sit- 1908, provides that if no person en- uated, in a large sum on account of titled to administer shall apply within taxes, and where no person having twenty days after the death of the the preference to letters of admin- intestate, the clerk or court shall ap- istration on such estate applied there- point a competent inhabitant of the for within twenty days after the county, to whom the letters shall is- death of such decedent, that the ap- sue. The court, in Bowen v. Stewart, pointment of the treasurer of such 128 Ind. 507, 26 N. E. 168, 28 N. E. county as administrator of the estate IZ, said: "Under the statute in force after the expiration of such twenty when the appointment was made, days, was legal and proper, either the clerk of the court or the * Miller v. Keith, 26 Miss. 166; At- court itself might make an appoint- kins v. McCormick, 4 Jones L. (N. ment after twenty days, and appoint Car.) 274. any competent inhabitant of the 'Wright v. Wright, 12 Ind. 149; county." Bowen v. Stewart, 128 Ind. 507, 26 § 41 LETTERS OF ADMINISTRATION, 49 A surviving partner, as a rule, should not be appointed admin- istrator of his deceased partner's estate to the exclusion of a per- son who would likely prove more disinterested,* A judge during term time may adjourn court for the day and afterward reconvene court, the same day, the adjournment being a mere intermission, as during the term a court may control its own sittings. The appointment of an administrator after court has so reconvened is not invalid on that account.® § 41. Form of petition, — The statute contemplates a peti- tion, or some kind of showing, to be made to the court, or a clerk, by a party applying for letters of administration. Some- thing of this kind is necessary to call into exercise the jurisdic- tion of the court. If some i^etition is filed, however defective it may be, and the court adjudges it sufficient, and acts upon it, an appointment so made will not be void." The petition should be in writing and should set forth the fact of death of the person, his intestacy, place of residence at the time of his death, whether or not he left any estate, an estimate of the value, and if application is made within the time allowed for preference, the petition should show the relationship of the applicant to the decedent, or his interest in the estate, and should also show that those, if any there be, who would, under the stat- ute, be preferred to such applicant, have waived their right to let- ters of administration. The statute does not prescribe any precise form in which the application shall be made, and does not even require that it shall be in writing. It does, however, require that the court, shall ex- amine under oath, the person applying for letters, touching the time and place of the death of the intestate, and whether or not he left a will, and concerning the qualifications of the applicant.^^ N. E. 168, 28 X. E. 7?, ; Burns' R. S. " Bowen v. Stewart, 128 Ind. 507, 1908. § 2839. 26 N. E. 168, 28 N. E. 7Z; Barber 'Garber's Estate. 74 Cal. 338; Hew- Asphalt Pav. Co. v. Edgerton, 125 ard V. Stagle, 52 111. ZZ6. Ind. 455, 25 N. E. 436. •Bowen v. Stewart, 128 Ind. 507, "Cooper v. Cooper, 43 Ind. App, 26 X. E. 168, 28 X. E. 7Z. 620, 88 X. E. 341. 4 — Pro. L.\w. 50 INDIANA PROBATE LAW. § 42 § 42. Letters as evidence. — Letters testamentary and of administration, and of administration with the will annexed, or de bonis non, attested by the clerk and under the seal of the court issuing them, shall be conclusive evidence of the authority of the person to whom they are granted, until superseded or revoked, and shall extend to all the estate, personal and real, of the dece- dent within the state. The record of such letters, and duly certi- fied transcripts thereof, may be given in evidence with like effect as the originals.^" The clerk shall keep a record of such letters in a book provided for that purpose." Letters must be issued by the clerk under the seal of the court granting them, otherwise they will be no evidence of authority of the person to whom they are granted to act." It is not necessary, in a suit by an administrator, that he should set out his letters of administration, to show his right to maintain the suit.^^ Duly certified copies of the letters, or certified transcripts of the record of them, will be accepted as sufftcient proof of the ap- pointment.^" § 43. Notice of appointment. — Every executor or adminis- trator, within thirty days after his appointment, shall give notice thereof by publication, three weeks successively, in some news- paper printed and published in the county, if any there be; and if not, by publishing the same in some newspaper printed and pub- lished nearest thereto ; and such notice shall state whether the es- tate is probably solvent or insolvent. A copy of such notice, with proof of such publication and dates, shall be filed by the executor or administrator with the proper clerk within thirty days after the publication is complete.^" '- Burns' R. S. 1908, § 2758. Barnes, 58 Ind. 20 ; Hansford v. Van ^'Burns' R. S. 1908, § 2727. Auken, 79 Ind. 157. "Tuck V. Boone, 8 Gill & Miller ^« Morse v. Bellows, 7 N. H. 549, (Md.) 187; Stewart v. Cave, 1 Mo. 28 Am. Dec. 372; Wittman v. Watry, 752. 45 Wis. 491. " Burns' R. S. 1908, § 2810 ; Wyant '' Burns' R. S. 1908, § 2776. V. Wyant, 38 Ind. 48; Cromwell v. § 44 LETTERS OF ADMINISTRATION. 5 1 As to the filing of claims against the estate by creditors, and for that purpose, the commencement of an administration dates from the time of giving the notice required by this section of the statute.^ ^ No particular form of notice is prescribed by the statute, and it has been held that though very informal, if there is enough in it to indicate the purpose for which it was given, the notice will be sufficient." § 44. Proof of notice. — An executor or administrator, whose duty it is to give any of the notices required by the pro- visions of this act, shall file a copy of every such notice in the of- fice of the clerk of the court having probate jurisdiction, with an affidavit thereon made by such executor or administrator, or a competent witness before some officer duly authorized to admin- ister oaths, stating the times and places when and where such no- tices were published or set up."'^ Such copy of any notice verified as aforesaid, and duly certified by the clerk of said court, shall be received as evidence in any court in this state, and be deemed sufficient proof of the matters and things therein contained.-^ Nothing contained in the two preceding sections shall preclude such executor or administrator, or any other person, from prov- ing, in any suit or proceeding, that the provisions of this act re- specting such notice have been complied with, although no such affidavit may have been filed as therein required. ^^ " Floyd V. Miller, 61 Ind. 224. ^ Burns' R. S. 1908, § 2985. " Gilbert v. Little, 2 Ohio St. 156. " Burns' R. S. 1908, § 2986. " Bums' R. S. 1908, § 2984. CHAPTER III. LETTERS TESTAMENTARY. §45. When issued and to whom. §50. Foreign executors to have pref- 46. Who not competent to serve as erence. executors. 51. Executor of executor. 47. Who shall be named. 52. Executor's power before letters 48. Renunciation of right. issue. 49. Letters with the will annexed. 53. Similarity of powers. § 45. When issued and to whom. — The statute provides that whenever any will shall have been duly admitted to probate, the clerk of the circuit court in which the same shall have been probated shall issue letters testamentary thereon to the person or persons therein named as executors who are competent by law to serve as such, and who shall appear and qualify.^ At the common law all persons except idiots and lunatics were competent to act as executors; neither infancy, ignorance, non- residence, coverture, intemperance, improvidence, vice, dishon- esty, nor moral delinquency disqualified one for the office. And in the absence of any statute expressly disqualifying any particu- lar classes of persons, or conferring a discretion upon the court vested with the power of appointment, the rule will prevail that courts have no discretion in respect to the issue of letters to the persons nominated in the will, and that the person appointed by the will cannot be rejected by the court except where the law ex- pressly so provides." In the absence of statutory regulation the choice of the testa- ^ Burns' R. S. 1908, § 2737. ner Am. Law Admin., p. 503, et seq. ; '^Kidd V. Bates, 120 Ala. 79, 23 So. Schouler Extrs. & Admrs., §§ 32, 33; 735, 74 Am. St. 17, 41 L. R. A. 154; 1 Williams Extrs., p. 269; Redfield Stewart's Appeal, 56 Me. 300 ; Woer- on Wills, pt. 3, chap. 2, § 3. 52 § 45 LETTERS TESTAMENTARY. 53 tor must be respected regardless of the moral character of the nominee. For from the earliest times it has been the rule that every person may be an executor, saving only such as are ex- pressly forbidden. The rule being that all persons who were ca- pable of making a will were qualified to act as executors.^ The fact, however, that one is named in the will as executor, does not make him so in fact, but only gives him the legal right to become executor upon complying with the conditions required by law.* The executor derives his right and title to the estate, as 'Smith's Appeal, 61 Conn. 420, 24 Atl. 273, 16 L. R. A. 538n; 2 Wil- liams Extrs., p. 108. In a case de- cided in New York in 1864, under a statute of that state. Judge Johnson uses the following language : "I am of the opinion that any person ap- pointed or named executor in a will is to be deemed to be competent im- less he is declared incompetent by statute, and that it is the duty of the surrogate to grant letters to every person named executor in a will, upon his application, who is not declared incompetent by some statute. He has no discretion to exercise in the mat- ter, but must obey the requirements of the statute, which is the sole source of his power. To allow surro- gates to invent new causes of dis- qualification, and add to those pre- scribed by statute, would be confer- ring novel and dangerous powers upon those officers of special and lim- ited jurisdiction." McGregor v. Mc- Gregor, 3 Abb. App. Dec. 92. In the same case Judge Denio said: "The selection of executors is not com- mitted to the surrogate's court. The testator is allowed to appoint such persons as he may select, provided they do not fall within the classes of incompetent persons mentioned in the statute." In a Kentucky case, decided in 1851, the court says: "The moral fitness of the person appointed as executor of a will cannot be inquired into by the court to which he applies for permission to qualify. He derives his office from testamentary appoint- ment, and, if he is a person not dis- qualified by law from being an execu- tor, the court has no right to refuse to permit him to qualify, or to refuse to grant him letters testamentary." Berry v. Hamilton, 12 B. Mon. (Ky.) 191, 54 Am. Dec. 515n. "One is not disqualified from acting as executor on account of crime. He may act in that capacity, although attainted or outlawed, under the English law. Nor does immorality or habitual drunken- ness, by the American practice, dis- qualify one to act in that office." Redf. Wills, art. 3, chap. 2, § 8. So far as we are aware these citations are in substantial agreement with our own law upon the subject. Thus Swift says : "Every person who is capable of making a will may be ap- pointed as executor." 1 Swift, Sys- tem of Laws, 423. In his digest, Judge Swift says: "An executor is a per- son appointed by the testator to carry his will into effect. Any person may be appointed an executor, excepting an idiot or alien enemy." ♦ Stagg V. Green, 47 Mo. 500. The doctrine of the common law in this regard has not been adopted in most 54 INDIANA PROBATE LAW. § 45 well as his appointment, from the will, but iiis power of adminis- tration over the estate does not become substantial until letters testamentary authenticating his appointment and right have been issued to him by the proper court. Such letters do not create the executor nor confer any title upon him, but are simply the authen- tic evidence of the power conferred by the will and which existed before letters issued. The issuing of letters testamentary, and the qualifying of the executor are matters of fonn and are for purposes of authentica- tion, as well as to give the stamp of legal approval and power to the appointment made by the testator in his will.'' Before letters testamentary can issue there are certain jurisdic- tional facts which must be established to the satisfaction of the probate court. The first and most important is whether or not there is a valid existing will which has been duly admitted to probate. For if no will no executor. It will be noticed that this statute does not forbid issuing let- ters testamentary to a non-resident executor. Non-residence was no disqualification at common law, nor is it now except where ex- pressly made so by statute.*^ Our statutes nowhere in express terms make non-residence a disqualification for the office of executor, but they do contain ex- of the states. The executor here until his right had been established by does not, as in England, derive his proof of the will. * * * power solely from the will, but the ' Fulgham v. Fulgham, 119 Ala. 403, law imposes certain obligations upon 24 So. 851 ; Cutler v. Howard, 9 Wis. him before he is permitted to execute 309; Hammond v. Wood, 15 R. I. 566, it. 10 Atl. 623 ; Whittaker v. Wright, 35 "Wankford v. Wankford, 1 Salk. Ark. 511; Holladay v. Holladay, 16 299; Stagg v. Green, 47 Mo. 500; Ore. 147, 19 Pac. 81. The omission Wood V. Cosby, 76 Ala. 557. By the of non-residents from the statutory common law the personal property of enumeration of persons disqualified the testator vested in the executor, to serve as executors authorizes the and he might, by virtue of the will, appointment of non-residents to act take immediate possession of it, dis- as executors. Hecht v. Carey, 13 pose of it, and in almost every respect Wyo. 154, 78 Pac. 705, 110 Am. St. treat it as his own. He was not 981; Rice v. Tilton, 13 Wyo. 420, 80 bound even to wait for its probate, Pac. 828. although he could not appear in court § 45 LETTERS TESTAMENTARY. 55 pressions like these, "change of residence actual or intended";'' "shall be about removing from the county" ; "removes to another county in this state. "^ These are all made cause for removal of an executor but seem to have application only to executors resi- dent in this state. Then again it is provided if any executor shall remove from the state, the remaining executor shall complete the administration, but if there be no co-executor remaining in this state letters of administration with the will annexed shall be granted to some person entitled, under the same regulations as the original letters were issued.^ This last cited statute was under construction in Ewing v. Ew- ing, 38 Ind. 390. In this case letters testamentary had been is- sued to a resident of this state and also to a resident of Ohio as co-executors. The former resigned and the latter removed from Toledo, Ohio, to Chicago for greater convenience in the discharge of the duties of the trust. On petition of one of the legatees it was held to be the duty of the court to appoint a resident admin- istrator to take the place of the resigned executor. But the court expressly refrained from deciding whether this would remove the non-resident executor, or deprive him of any of the powers con- ferred, or relieve him of any of the duties imposed on him by the will or by the law of his appointment. And so the question remains undecided in this state yet." Another jurisdictional fact necessary to be shown before let- ters testamentary are issued, is the existence of some estate to be administered upon or something for the executor to do, otherwise there should be no appointment. 'Burns' R. S. 1908, § 2762, first cutor who shall reside out of the clause. state, but such provision is to be con- ' Burns' R. S. 1908, § 2762, fifth strued as giving discretionary power clause. of removal when the distance between "Burns' R. S. 1908, § 2756. the place of residence of the executor ^'' The common-law right to name a and the court where the business is non-resident executor is not to be to be transacted is so great as to ren- swept away by giving a mandatory der it inconvenient and impracticable construction to a statutory provision for him to act. Cutler v. Howard, that the court "may" remove an exe- 9 Wis. 309. 56 INDIANA PROBATE LAW. § 45 The following have been held assets sufficient to justify an ap- pointment: Property brought within the state after the testator's death if brought in good faith and not for the purpose of gWmg jurisdiction;^' a judgment held by the decedent in this state;'" a right of action to set aside a fraudulent conveyance;" or a debt due from an inhabitant of this state to the decedent;'* a policy of insurance payable in this state;" shares of stock in a resident cor- poration ;'•" a note secured by mortgage on property in this state ;" a folding chair;" a right of action on an unliquidated claim;'® a distributive share due the decedent and in the hands of an admin- istrator of this state. '° Every person named in the will as executor, who shall qualify and give bond, shall be named as executors in the letters testa- mentary; and every person not named in such letters shall be deemed superseded.^' When there are two or more executors named in the will, each must prove the will and take out letters testamentary, and each is liable only for the assets which come into his hands. Letters testamentary granted in another state are recognized here upon being filed with the clerk of the court in which they are intro- duced. ^- When letters testamentary were granted, and, instead of being delivered to the executor, were entered of record, and afterwards, "Pinney v. McGregory, 102 Mass. &c. Life Assn., 7 Misc. (N. Y.) 593, 186; Borer v. Chapman, 119 U. S. 587, 28 N. Y. S. 263; In re Miller, 5 Dem. 30 L. ed. 532, 7 Sup. Ct. 342; Carroll (N. Y.) 381. V. Hughes, 5 Redf. (N. Y.) 337; "Arnold v. Arnold, 62 Ga. 627. Christy V. Vest, 36 Iowa 285. " Clark v. Blackington, 110 Mass. ^"Thomas v. Tanner, 6 T. B. Mon. 369. (Ky.) 52. "White v. Nelson, 2 Dem. (N. Y.) "Bowdoin v. Holland, 10 Cush. 265. (Mass.) 17. "Robinson v. Epping, 24 Fla. 237, "Stearns v. Wright, 51 N. H. 600; 4 So. 812. IMurphy v. Creighton, 45 Iowa 179; =" In re Nesmith, 48 Hun (N. Y.) Wyman v. Halstead, 109 U. S. 654, 27 621. 1 N. Y. S. 343. L. ed. 1068, 3 Sup. Ct. 417. '' Burns' R. S. 1908. § 2738. "New England &c. Ins. Co. v. - Naylor v. Moody,2 Blackf. (Ind.) Woodworth, 111 U. S. 138, 28 L. ed. 247. 379, 4 Sup. Ct. 364; Sulz v. Mutual § 46 LETTERS TESTAMENTARY. 57 when delivered, were certified to be of record, they were held sufficient." § 46. Who not competent to serve as executors. — The statute further provides that no person shall be deemed compe- tent to serve as an executor who at the time of application for let- ters shall, upon proof made before such court or clerk, be shown to be, 1st, under the age of twenty-one; 2d, to have been convicted of a felony; 3d, who shall be adjudged by said court or clerk in- competent to discharge the duties of an executor by reason of im- providence, habitual drunkenness or other incapacity.^* No married woman shall be appointed executrix unless the written consent of her husband thereto has been filed with the proper clerk, -^ By the common law a wife could not act as an executrix or administratrix without her husband. The right to administer devolved upon him by right of the marriage and he was permitted to act in the administration of the effects of the deceased either with or without her consent. He was, to all in- tents and purposes, not alone co-administrator or co-executor with her but the sole trustee.^® But this rule is now changed by statute and a married woman may now, with the consent of her husband, accept such trust, the office vesting in her alone with no right of participation therein to the husband, yet he will be held responsible for her acts in the discharge of such trust.^' The statute in this respect is simply declaratory of the common law. The wife, where such consent is given, is the administra- trix or executrix as the case may be, and may sue as such, and discharge the duties of her trust without her husband joining her.-^ "Bales V. Binford, 6 Blackf. (Ind.) to give bond. * * * But her husband 415. must consent to her acting in such ca- " Burns' R. S. 1908, § 2737. pacity." ^Burns' R. S. 1908, § 2745. Ex =» Yard v. Eland, 1 Ld. Raym. 368; parte Maxwell, 19 Ind. 88. The court, Ankerstein v. Clarke, 4 T. R. 616. in this case, says: "By the common "Jenkins v. Jenkins, 23 Ind. 79; Ex law, as administered in the chancery parte Maxwell, 19 Ind. 88; Burns' R. and ecclesiastical courts, a married S. 1908, § 2745. woman is not disabled to be an execu- ^Jenkins v. Jenkins, 23 Ind. 79; trix, administratrix, or guardian; Ex parte Maxwell, 19 Ind. 88. though, as such, she may be required 58 INDIANA PROBATE LAW. § 46 Neither the canon nor the civil law made any distinction be- tween woman married and unmarried as to the right to act as administrator or executor, and a wife could take upon herself such duties, even without the consent of the husband.-" In this state, where a feme sole has been appointed executrix, and pending the settlement of the trust she marries, such mar- riage is cause for her removal unless her husband files his written consent to her continuing to act as such executrix.^" Improvidence and habitual drunkenness are made disqualifica- tions; and any other incapacity held, by the court or clerk mak- ing the appointment, a disqualification, will render one incompe- tent to act as executor. Such appointment cannot be refused though, by reason of any unfitness peculiarly within the knowl- edge of the person making the appointment. Such personal knowledge should be put in form of evidence so that an adjudica- tion could be had as if upon a hearing." The disqualification on the ground of improvidence refers to -■» Williams Extrs. 272. ^"Burns' R. S. 1908, §§ 2762, 2768; Jenkins v. Jenkins, 23 Ind. 79. In this case the widow of a decedent was ap- pointed administratrix of the estate of such decedent, and while acting as such notes were executed to her in her representative capacity as payee, and while holding such notes she re- married, and then commenced suit on such notes in her own name. She had not been removed as administra- trix, and it does not appear that her husband ever filed his consent for her to act as such. The court held that she might maintain the suit in her own name, without the joinder of the husband, saying, "that an executor or administrator may sue by virtue of the legal title without joining the ben- eficiary. Now, the legal title to the personal property of the deceased is in the administratrix or executrix, in a case like the present, as her sepa- rate property, as against her hus- band." ^ Smith V. Moore, 3 How. (Miss.) 40. A provision in a will selecting an attorney and directing the executor to consult and employ him on mat- ters pertaining to the will and the estate is not binding on the executor, nor does it show an intent to commit the execution of the will to the attor- ney, and entitle him to be selected as an executor. Estate of Ogier, 101 Cal. 381, 35 Pac. 900, 40 Am. St. 61. In the absence of any objection to the competency of an executor, an order admitting the will to probate in- cludes his right to have letters issued to him. Estate of Richardson, 120 Cal. 344, 52 Pac. 832. Letters testa- mentary cannot be issued to one not named as executor in the will. Estate of Wood, 36 Cal. 75. § 47 LETTERS TESTAMENTARY. 59 such habits of mind and body as render a man generally, and under all ordinary circumstances, unfit to serve.^" § 47. Who shall be named. — The testator has the right to nominate an executor, and unless the person so named is in some way legally disqualified, he should be appointed. No one has a right to ask appointment to the office of executor unless the testa- tor has so named him in his will. It is not, however, necessary that the executor be designated by name in the will. It will be sufficient if the language used by the testator be such that it shows his intention to invest a certain per- son with the office and to identify the person intended.^^ Nor even need this much be done, for the testator may designate some one and vest him with the power to select and name an executor. This power to delegate the appointment to a third person was valid at common law, and the appointment when made by such third person will be the same as if the testator had named such person in his will.^* The court saying in one case, "the executor is the creation solely of the testator. And it is within the power of the latter, not only to appoint personally, but he may project his power of appointment into the future, and exercise it after death through an agent selected by him. And the agent may be pointed out by name, or by his office or other method of certain identification."^^ Where one named in the will as executor has taken on himself by mutual consent of all the persons interested in the estate the duties of the trust without qualifying as executor, it would be a fraud upon him, as well as upon the heirs, legatees and devisees " Emerson v. Bowers, 14 N. Y. 449 ; Bishop, 56 Conn. 208, 14 Atl. 808 ; Cooper V. Lowerre, 1 Barb. Ch. (N. Kinney v. Keplinger, 172 111. 449, SO Y.) 45. N. E. 131; Wilson v. Curtis, 151 Ind. "Carpenter v. Cameron, 7 Watts 471, 51 N. E. 913, 68 Am. St. 237; (Pa.) 51; Matter of Blancan, 4 Redf. Woerner Law Admin., § 239; (N. Y.) 151. Schouler Extrs. & Admrs., § 41 ; Cros- " Hartnett v. Wandell, 60 N. Y. well Extrs. & Admrs., p. 52. 346, 19 Am. Rep. 194 ; State v. Rogers, "^ Bishop v. Bishop, 56 Conn. 208, 14 1 Houst. (Del.) 569; Mulford v. Mul- Atl. 808. ford, 42 N. J. Eq. 68; Bishop v. 60 INDIANA PROBATE LAW. § 48 who had consented to such action, to appoint a stranger adminis- trator with the will annexed after the time for qualifying by such executor has passed, and such letters should not be confirmed. """^ Where two or more persons have been named by a testator in his will as executors thereof, and only one of them qualifies, that one has all the authority under the will which would ha\e vested in all had they qualified." If the testator fails to appoint an executor in his will, and by such will directs that all of his estate shall go at once into the hands of legatees, such direction will be nugatory and void as against creditors or others adversely interested in his estate.^"* § 48, Renunciation of right. — Any person who is appointed executor who shall renounce his trust in writing filed with the clerk, or who shall fail to qualify and give bond within twenty days after probate of such will, shall be deemed to have renounced such appointment, and such letters shall issue to any other person named in the will capable and willing to accept such trust.^" " Hays V. Vickery, 41 Ind. 583. execute the will ; that it was neces- " Bodley v. McKinney, 9 S. & M. sary for all the donees to join in the (Miss.) 339; Phillips v. Stewart, 59 execution of the power. But there is Mo. 491. In Call v. Ewing, 1 Blackf. nothing in this objection. Only one 301, the court says : "It seems, there- of them qualified, and the statute de- fore, that bond and surety should be clares that where there are two or given for the due execution of the more persons appointed as co-exe- will by each person who acts as exe- cutors in any will, none shall have cutor under that will; and that no authority to act as such, or inter- person has authority to act as exe- meddle, except those who give bond, cutor until bond and surety be given Case alone having qualified, the whole that he will discharge his duty as duty and burden of executing the svich executor." The court in Phillips power devolved upon him, and him v. Stewart, 59 Mo. 491, said: "The alone." will appointed four persons as exe- ^' Newcomb v. Williams, 9 Mete, cutors and only one, the defendant (IMass.) 525. Case, qualified. ' The will giving the "^ Burns' R. S. 1908, § 2739. Renun- power to sell and convey the land for ciation is a declination to accept the the payment of debts uses this Ian- office, and if an executor renounces, he guage : 'which my executors are here- may retract such renunciation if no by authorized and empowered to sell administrator has been appointed in and convey for such purpose.' It is the meantime. In general any agree- now urged that Case alone could not ment for a consideration to renounce § 49 LETTERS TESTAMENTARY. 6 1 As the office of executor is one of personal confidence the per- son named by the testator has his election to accept or renounce the trust imposed upon him by the will.*'^ The trust must be renounced entirely or not at all. It can not be done in part," The renunciation must be in writing, signed by the executor named, and filed in the court where the will is probated, for the purpose of furnishing matter of record upon which to base the appointment of another executor, or an administrator with will annexed. The English rule of constructive acceptance or renun- ciation of the trust can have no place under such statute as ours, for the presumption is here, after twenty days from the probate of the will, in favor of his renunciation. Xor is there such a thing as renouncing the trust after an executor has quaHfied; an exec- utor can only be said to renounce when he refuses to qualify with- in the given time, and a refusal afterwards to act is more prop- erly a resignation. ^- The right to letters testatmentary cannot be assigned, an agree- ment to that effect being held to be contrary to public policy.^^ The death of a sole executor before probate of the will or re- nunciation leaves a vacancy which must be filled as in the case of a formal renunciation. ■'■' § 49. Letters with the will annexed. — AA'henever the per- son named in the will as executor declines to serve as such for an executorship is illegal and will not *^ In re Suarez, 3 Dem. (N. Y.) be enforced. An agreement made with 164. After letters have been granted persons in interest before the death and the person appointed has quali- of the testator and contrary to his ex- fied, he cannot renounce the office. pressed wish, with one named by him The only way of escape then is by as executor, to renounce the appoint- resignation. Goods of Veiga, 32 L. ment for a consideration, is void as J. P. 9. against public policy. Schouler on "Stanton v. Parker, 19 Hun (N. Extrs. & Admrs., § 48; Robertson v. Y.) 55; Ellicott v. Chamberlin, 38 N. McGeoch. 11 Paige (N. Y.) 640; J. Eq. 604, 48 Am. Rep. 327n; Bowers Davis V. Inscoe, 84 N. Car. 396. v. Bowers, 26 Pa. St. 74, 67 Am. Dec. « Williams Extrs. § 274. 398. "Thornton v. Winston, 4 Leigh "Schouler Extrs. & Admrs., § 45. (Va.) 152. 62 INDIANA PROBATE LAW. § 49 any reason, or where the will fails to designate any person as ex- ecutor, or fails to delegate some person to appoint an executor, the duty devolves upon the proper probate court, when such fact is made to appear, to appoint some suitable and legally competent person administrator with the will annexed, whose duty it will be to proceed with the administration of such estate according to the tenor of the will. A person so appointed is like an administrator in this that his sole authority to act rests in his appointment by the probate court, but like an executor he must administer the estate accord- ing to the directions in the will. His duties therefore being those of an executor; his appointment that of an administrator. The statute in regard to such appointments is as follows: If there be no person named in the will as executor, or if those named therein have failed to qualify, have renounced or have been removed, letters of administration with the will annexed shall be granted by the proper clerk or court to any competent residuary legatee named in such will willing to accept, or, if there be none willing to accept, then to a competent specific legatee, or, if there be none such willing to accept, then to any competent per- son under the same regulations as in granting letters of adminis- tration in the case of intestacy.^^ Whenever there is a will there must be an executor, or an ad- ministrator with the will annexed ; no administrator can be ap- pointed when there is a will. If there is an executor named in the will, he must be appointed, if willing to serv-e; otherwise, an administrator with the will annexed must be appointed. Such administrator may be appointed in the following cases: ist, where there is no person named in the will ; 2d, when those named in the will have failed to qualify; 3d, when those named as ex- ecutors have renounced the right to administer; 4th, wdien the ex- ecutor named in the will has been appointed and afterward been removed from the trust. The only difference between an exec- utor and an administrator with the will annexed consists in their mode of appointment. The one is designated by the testator, and '' Burns' R. S. 1908, § 2741. § 49 LETTERS TESTAMENTARY. 63 qiialiried by the clerk or court; the other is both apjjointed and quahfied l)y the clerk or court. In the appointment of an admin- istrator with ihc will annexed, the preference is to be given, ist, to a comi)etent residuary legatee; 2d, to a specific legatee; and, 3d, to any competent person, under the same regulations as to grant- ing letters in case of intestacy; that is, ist. to the widow; 2d, to the next of kin; 3d, to the largest creditor residing- in tlie state; 4th, to some competent inhabitant of the county. There cannot be in the same estate both an executor, or an admim'strator with the will annexed, and an administrator. The executor is suc- ceeded by the administrator with the will annexed, and the ad- ministrator with the will annexed is succeeded by the administra- tor de bonis non with the will annexed. They all act under and in pursuance of the will.'" Letters of administration with the will annexed cainiol be legally granted and confirmed while letters testamentary granted to an executor named in the will remain in full force." In some of the states it is provided by statute that all the rights and powers of the executor are vested in an administrator with the will annexed rmd he is subject to the same duties as if he had been named as the executor in the will. But while we have no such statute in this state, our courts have followed the same prin- ciple as being the true one in dealing wilh such administrations. There can be no doubt but that such rule is the true one, but a diiliculty occurs in its application where the will imposes duties and trusts upon the executor named therein which are not such as are necessary for the administrator with the will annexed to exercise in the due administration of the estate. So where the trusts and duties rej)osed by the will in the exec- utor named are of a ])ersonal and esi)ecial confidence, and such as may be dissociated from the actual administration of the estate they would not of right follow and vest in the administrator with the will annexed. 'J'he rule is stated by one author as follows: "The general rule, then, may be stated to be that where the "Landers v. Stone, 45 Ind. 404; "Landers v. Stone, 45 Ind. 404; Davis V. Hoover, 112 Tnd. 423, 14 N. Springs v. Erwin, 6 Ired. (N. Car.) E. 468. 27. 64 INDIANA PROBATE LAW. § 50 provision defining trust, when considered separately or in con- nection with the rest of the will, is imperative, or evidences no in- tention on the part of the testator of reposing any such special or personal confidence or discretion in the executors as would dis- sociate the trust confided to them from their office as executors, or prevent them from fully administering it, an administrator with the will annexed will be entitled to complete the execution of the trust."** § 50. Foreign executors to have preference. — If. before the grant of letters here, in case any person not an inhabitant of the state shall die, leaving assets therein, or assets shall come into it after his death, it shall appear that letters testamentary, or of administration with the will annexed, have been granted on such estate by competent authority, in any other of the United States, then the person so appointed, on producing such letters, shall be entitled to letters in preference to all other persons, except cred- itors, legatees and heirs of the deceased entitled to distribution who are inhabitants of this state.^^ This statute only gives a qualified preference to a foreign ex- ecutor appointed for a non-resident, and upon a compliance by ^'Jessup's Siir. Prac. 557; Hood v. such case the power and duty are not Hood, 85 N. Y. 561; Mott v. Acker- those of executors virtute officii, and man, 92 N. Y. 539. The debate has do not pass to the administrator with turned mainly upon the inquiry what the will annexed. But outside of were the distinctive duties of an exe- such cases the instances are numerous cutor as such, and when they were to in which by the operation of a power be regarded as not appertaining to his in trust, authority over the real estate office, but as personal to the trustee, is given to the executor as such and Where the will gives a power to the the better to enable him to perform donee in a capacity distinctively dif- the requirements of the will. Jessup's ferent from his duties as executor, so Sur. Prac, 556: Wager v. Wager, 89 that as to such duties he is to be re- N. Y. 161 ; DePeyster v. Clendining, garded wholly as trustee and not at 8 Paige (N. Y.) 295; Conklin v. Eg- all as executor; and where the power erton, 21 Wend. (N. Y.) 430; Edger- granted or the duty involved implies a ton v. Conklin, 25 Wend. (N. Y.) personal confidence reposed in the in- 224; Roome v. Philips, 27 N. Y. 357; dividual over and above and beyond Bain v. Matteson, 54 N. Y. 663 ; Bing- that which is ordinarily implied by ham v. Jones, 25 Hun (N. Y.) 6; the selection of an executor, there is Pratt v. Stewart, 49 Conn. 339. no room for doubt or dispute. In ** Burns' R. S. 1908, § 2746. 8 5^ LETTERS TESTAMENTARY. 65 such executor with the law of this state he will become entitled to letters of administration with the will annexed of the estate of his testator located in this state. Without such appointment he would have no right of control over the assets in this state.^*' Such foreign executor's power over, and disposition of, prop- erty in this state, which comes under his control by virtue of an appointment under this statute, is regulated exclusively by the laws of this state. § 51. Executor of executor. — An executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, or rights of the testator of the first executor, or to take control thereof as such executor.^^ An administrator of an administrator has no authority to ad- minister on the estate of the first intestate." This statute changes the rule at common law. By that, upon the death of an executor testate, the executorship devolved upon his executor; and upon the death of that executor testate, the trust passed to his executor, and so on, so long as the chain of representation remained unbroken by any intestacy ; and upon the death of one or more joint executors the trust devolved upon the survivors, and would ultimately pass to the executor of the last survivor. ^^ But at common law if one named as executor dies before the will has been proved or probated, such executorship was not transmissible to his executor, but was wholly determined by his death, and an administrator with the will annexed must be ap- pointed.^* But if an executor dies pending the settlement of his trust, it becomes the duty of his administrator, or other personal repre- ""Watkins v. Holman, 16 Pet. (U. "Williams Extrs. 254; Crafton v. S.) 25. 10 L. ed. 873; Rosenthal v. Beal, 1 Ga. 322; Wankford v. Wank- Renick, 44 111. 202. ford, 1 Salk. 299. "Burns' R. S. 1908, § 2813. "Day v. Chatfeild, 1 Vern. 199; "Ray V. Doughty, 4 Blackf. (Ind.) Williams Extrs. 2SS. 115. 5 — Pro. L.wv. 66 INDIANA PROBATE LAW. § 52 sentative, to account, as to such trust, to the successor of the ex- ecutor.'^^ >; 52. Executor's power before letters issue. — Xo executor named in the will shall interfere with the estate entrusted to him further than to preserve the same until the issuing of letters, hut for that purpose he may prosecute any suit to prevent the loss of any part thereof. °® Under this statute an executor named in the will has no power to intermeddle with the estate, further than is necessary to pre- serve the same, until after the issuing of letters testamentary, and if he should do so he becomes, in effect, an executor de son tort. But for the purposes for which he may interfere with the estate, under this statute, the issuing to him of letters will relate back as of the death of the testator. He holds the estate as trustee for legatees, creditors, and parties interested under the will ; and pending the issuing of letters and his qualifying and giving bond, is the legal representative of the estate.^' The doctrine of rela- tion, however, will not be applied where its effect will be to divest a right which has legally vested in another between the death of the testator and the grant of letters.^* It exists only where the act to be validated is for the benefit of the estate.^" Formerly executors could neither sue nor be sued until after the probate of the will and the issuing of letters testamentary thereon.^'' But this rule is modified to a certain extent by the above statute. " Jarnagin v. Frank, 59 Miss. 393. '' Burns' R. S. 1908, § 2740. In Silvers v. Canary, 114 Ind. 129, 16 " Shirley v. Healds, 34 N. H. 407. N. E. 166, the court says : "It is the "** Williams Extrs., § 634. duty of executors and administrators ^ Gilkey v. Hamilton, 22 Mich. 283; who come into possession of trust Crump v. Williams, 56 Ga. 590. property to settle the accounts of the '"Call v. Ewing, 1 Blackf. (Ind.) decedent in relation to the trust. 301 ; Calloway v. Doe, 1 Blackf. They must see to it that the trust (Ind) 372. The court in Stagg v. fund is preserved, but they are not Green, 47 Mo. 500, says : "The exe- bound to execute the trust, and they cutor here does not, as in England, may pay the fund over, with the ap- derive his power solely from the will, proval of the court, to a duly ap- but the law imposes certain obliga- pointed successor." See also Lucas v. tions upon him before he is permitted Donaldson, 117 Ind. 139, 19 N. E. 758. to execute it. The statute of our § =,;^ LETTERS TESTAMENTARY. 6"/ Whenever a person makes a will the presumption arises that he disposes of all his property, subject to his disposition, and that he did not die intestate as to any of his property. So when letters testamentary are issued to one who is appointed executor, he is empowered to administer upon the entire estate whether disposed of by the will or not." The property of the testator is in the hands of the executor even before the probate of the will, and he may exercise many of the powers of ownership over it, and this section of the statute does not prohibit his taking such possession of the property of the testator, before letters issue, as may be necessary for its preserva- tion and safe keeping. He cannot dispose of it. § 53. Similarity of powers. — The modern tendency of the law is to assimilate the functions of the two classes of personal representatives, executors and administrators, and to recognize the departure of their functions only so far as the distinction be- tween settling testate and intestate estates fairly produces it. Both are required to take out letters and qualify in the same court, and perform the duties of their trust upon a like plan, and subject to a like supervision.®" Both are trustees with special functions, differing from other trustees in that their office looks to the wind- ing up of the estate and a speedy determination of the trust; dif- fering from one another only in so far as the course of adminis- tration is affected by the provisions of the will, and the personal confidence reposed in the executor by the testator.®^ While an administrator derives his authority wholly from the court and the law of his appointment, an executor's power and right to act is derived from his testamentary appointment; his powers, under the law, are as great as are those of an administra- tor, and by the terms of the will may be much greater.®* state expressly requires two things of Ind. 404; Carroll v. Swift, 10 Ind. one named as executor before letters App. 170, 37 N. E. 1061. can issue to him : First, that he take "" Schouler Extrs. & Admrs., § 2. the oath ; and second, that he give *" Schouler Extrs. & Admrs., § 6. bond." "^Williams Extrs. 620; Scott v. ° Borgner v. Brown, 133 Ind. 391, West, 63 Wis. 529, 24 N. W. 161, 25 33 N. E. 92; Landers v. Stone, 45 N. W. 18. In Landers v. Stone, 45 68 INDIANA PROBATE LAW. § 53 An executor has no power over the fee-simple estate, unless authorized by the will, but lie may maintain ejectment for his testator's lands which are held for a term of years."^ The execu- tion of a will in another state, devising land lying within this state, must be in confomiity to the laws of this state.®* An exe- cutor derives his power to act as such in reference to the transfer of immovable property, from a compliance with the law of the place where he attempts to operate under the will, and not from the will alone; and executors appointed in another state must comply substantially with the laws in this state in reference to such executors, before they can be recognized here."' Letters testamentary give the executor the power and right to administer all the property of the testator, though a part of the property be not bequeathed by the will."* The functions, powers, duties, rights and liabilities of an exec- utor are in most respects identical with those of an administra- tor. An administrator's grant of power comes from the law, an executor's from the will ; but in so far as no other provision is made in the will, an executor acts, in the settlement of the estate, under the same law as an administrator. In so far, however, as its administration is concerned, he must follow the provisions of the "will if they are not contrary to law. Upon the similarity of the duties, powers, etc., of the two classes of officers, Mr. Woerner, in his valuable work, has this to say: "But however great the similarity between the two offices may be, there are some essential distinctions which cannot be ignored or abolished, even by legislation, without a change in the law of administration so radical as to be improbable at least for many years to come."*^ Ind. 404, the court says: "When (Ind.) 117; Smith v. Dodds, 35 Ind. there is no will an administrator is 452. appointed and is succeeded by an ad- ^Calloway v. Doe, 1 Blackf. (Ind.) ministrator de bonis non, and they 372. act under and in pursuance of the "Lucas v. Tucker, 17 Ind. 41. statute." ■" Landers v. Stone, 45 Ind. 404. *°Duchane v. Goodtitle, 1 Blackf. ^Woerner Am. Law. Admin., § 171. § 53 LETTERS TESTAMENTARY. 69 He further says: "The decisive difference between them arises out of the method of their appointment ; executors repre- sent their testators by virtue of the act of the testator himself, while the authority of the administrator is derived exclusively from the appointment by some competent court." "An important distinction exists also in respect of the power to hold, manage and alienate the property of the deceased; the authority of the administrator is commensurate with the provi- sions of the law on the subject, as existing and recognized in the forum of his appointment ; but the will of the testator is in itself a law to the executor, which may enlarge or circumscribe the authority or discretion which an administrator would have, and which, to the extent in which it is not repugnant to the law of the state, he must strictly obser\^e."'° At common law the executor's rights and powers were de- rived from the will, and it became operative at the death of the testator. The probating of the will, the qualifying of the exe- cutor, his letters, etc.. were mere ceremonies of authentication.^^ But this doctrine has been materially modified in most of the states. In one case it is said : "The fact that one named in the will as executor does not, as at common law, make him executor in fact, but only gives him the right to become executor upon complying with the conditions required by law.""" '" Woerner .-Km. Law Admin., § v. Fo.x. 1 Plowd. 275 ; Johnes v. Jack- 171. son, 67 Conn. 81, 34 Atl. 709. "Williams Extrs. 239; Wankford " Stagg v. Green, 47 Mo. 500; V. Wankford, 1 Salk. 299 ; Graysbrook Shoenberger v. Lancaster Sar. Inst., 28 Pa. St. 459. CHAPTER IV. EXECUTORS AND ADMINISTRATORS. 54. DitTerent kinds. § 66. 55. Special administrator where is 67. delay. 68. 56. Special administrator in contest of will. 69. 57. Powers of special administrator. 70. 58. Administrator of absentee. 71. 59. Same— Powers of administrator. 71. 60. Same — Presumption of death. 72i. 61. Administrator de bonis non. 74. 62. Same— There must be a vacancy. 75. 63. Same — There must be assets. 64. Same — Time within which ap- "?(>. pointment may be made. 77- 65. Same — Devastavit of former ad- 78. ministrator. Same— Right to sue. Same — Admissions. Same — Appointment after final settlement. Executor de son tort. Same— The statute. Same — Statute construed. Same — Statute construed. Same — Intermeddlers' rights. Same — Rights of widow. Joint executors and administra- tors. Same — Joint liability, etc. Same — Actions by and against. Administrators in case of wrongful death. § 54. Different kinds. — Besides the original administration already considered there is known to the law certain secondary and limited administrations. They are denominated in the books as administration cum testamento annexo; administration de bonis non ; administration durante minore setate ; administration durante absentia; administration pendente lite, and administra- tion ad colligendum.^ Most of these special and limited administrations, under one form or another, are known to the laws of this state, and are recognized by statute. They are all however, governed and con- trolled by the same rules of procedure as is the original, or prin- cipal, administration. ^ 19 Am. & Eng. Encyc. L. 209. 70 § 55 EXECUTORS AND ADMINISTRATORS. 7I Such administrations are special in their nature and merely temporary, and with the exception of an administration de bonis non, they are limited in their powers, and are usually confined to the collection and preservation of the property of a decedent until a proper administrator is appointed." Such special adminis- trators are appointed for temporary purposes and not as perma- nent representatives of the decedent's estate. When the time for the appointment of a regular administrator arrives, or the condition of atlairs which made the appointment of a special administrator necessary has ceased to exist, then the special letters may be superseded by general letters of administra- tion.^ § 55. Special administrator where is delay. — If, from any cause, delay is necessarily occasioned in granting letters, or if, before the expiration of the time allowed by law for the issuing thereof, any competent person shall file his affidavit with the clerk of the court that any one is intermeddling with the estate, or that there is no one having authority to take care of the same, the proper clerk or court shall issue special letters of administra- tion to some competent person, to collect and preserve the prop- erty of the testator or of the intestate until demanded by an exe- cutor or administrator duly authorized to administer the same, when such special letters shall be deemed revoked.* It is not every delay, however, that will warrant the appoint- ment of a special administrator. If the delay will not necessarily "Tomlinson v. Wright, 12 Ind. App. tor of the estate of the decedent, not- 292, 39 X. E. 884 ; State v. Tomlinson, withstanding an appeal has been taken 16 Ind. App. 662, 45 X. E. 1116, 59 from the judgment declaring such Am. St. 335. will invalid, and a supersedeas ob- ^ Hayes v. Haj'es, 75 Ind. 395. tained from the appellate court, and In this case it is held that where a notwithstanding the fact that a spe- will is offered for probate, and the cial administrator was appointed pend- probate and validity of such will is ing the proceedings to contest such contested, and upon trial such pro- will, and who was still acting as such bate is refused and the will adjudged when such appeal was taken and such to be invalid, that the court exercis- general administrator was appointed, ing probate jurisdiction has authority * Burns' R. S. 1908, § 2753. to then appoint a general administra- ^2 INDIANA PROBATE LAW. § 55 or probably cause loss to the estate, or jeopardize the rights or remedies of persons interested therein, there will be no need of a special administrator. It has been held to authorize the granting of special letters where there were outstanding promissory notes, or other un- secured claims, the collection of which would be doubtful if there was any delay.'' A special administrator may be appointed for the sole purpose of prosecuting or defending a particular suit if there is deemed a present urgent necessity for it.® Such an appointment would create an administration pendente lite. The statute says that special letters shall be granted to "some competent person." thus vesting in the probate court a large dis- cretion. Any one who is competent to receive general letters of administration would be competent under this statute, but it might be, by reason of interest in some pending litigation, or bias or prejudice of some sort, that to appoint any of such per- sons would be improper and adverse to the best interest of the estate to be subserved by such appointment. It is said in one case : "It is important that a person intrusted with temporary ad- ° Matthews v. American Cent. Ins. 28 L. ed. 1015, 5 Sup. Ct. 652. Letters Co., 154 N. Y. 449, 48 N. E. 751, 61 of administration pendente lite will Am. St. 627, 39 L. R. A. 433; Matter not be revoked and general adminis- of Eddy's Estate, 10 Misc. (N. T.) trator appointed pending the determin- 211, 31 N. Y. S. 423. The ap- ation of the litigation. Robinson's pointment of a temporary repre- Estate, 12 Phila. (Pa.) 170. "Lis sentative who may take the nee- pendens is 'a pending suit.' So that, essary steps to prosecute an action on as long as the lis continues pendens, an insurance policy within the period so long does the administrator ap- limited may be necessary in case of a pointed during litigation, remain a loss occurring after the death of the provisional administrator. And the insured, if the appointment of a gen- pendens of the lis is not disturbed nor eral representative cannot for any rea- in any manner affected by the fact of son be secured with ordinary prompt- an appeal taken from the circuit court ness. to this court. The litigation or con- 'Wade V. Bridges, 24 Ark. 569; test still goes on; and the power of Wolffe V. Eberlein, 74 Ala. 99, 49 Am. the temporary administrator still re- Rep. 809 ; Woolley v. Green, 3 Phillim. mains unaffected by the varying for- 314; McArthur v. Scott, 113 U. S. 340, tunes or vicissitudes of the pending § 56 EXECUTORS AND ADMINISTRATORS. 73 ministration should be not only competent and honest, but disin- terested ; and if he had to be either a relative or a creditor of the deceased it might often be veiy difficult to select a temporary administrator who should be indifferent as between the parties to a contest among applicants for permanent administration or a contest over the probate of a will."' In one case the court refused to appoint a party to the litiga- tion f and again one who was named executor in the will was re- fused appointment as special administrator because being the chief beneficiary in the will it was believed his interest was hos- tile to the heirs or next of k'mf so where the person named as executor, is, in a contest of the will charged with having exer- cised undue influence over the testator, his appointment as spe- cial administrator was refused.^'' ^ 56. Special administrator in contest of will. — When any person shall have died testate, and notice of contest of the will of said testator shall have been given, as required by law, it shall be lawful for the proper court to appoint a special administrator, who shall proceed to collect the debts due said testator, by suit or otherwise, and to sell the personal property of said testator, and also to pay tlie claims against his estate, in the same manner and under the same regulations as are now required of administrators of intestates, so far as the same may be done consistent with the terms of such will.^^ In construing this section our Supreme Court says : "This section was enacted in order that actions to contest wills might not unnecessarily delay the settlement of estates. It should receive a construction consistent with such intent. Under its pro- visions a court may appoint a special administrator whose duty controversy." State v. Guinotte, 156 ° Howard v. Dougherty, 3 Redf. (N, Mo. 513, 57 S. W. 281, 50 L. R. A. Y.) 535. 787n; Gilman v. Hamilton, 16 111. 225; " Cornwell v. Cornwell, 1 Dem. (N. Krug V. Davis, 101 Ind. 75. Y.) 1 ; Wanninger's Estate, 3 N. Y. S. 'Matter of Plath, 56 Hun (N. Y.) 107. 223, 9 X. Y. S. 251. "Burns' R. S. 1908, § 2755. 'Crandall v. Shaw, 2 Redf. (N. Y.) 100. 74 INDIANA PROBATE LAW. § 56 it is to proceed with the collection of debts, the sale of personal property, and the payment of claims against the estate, the same as is required of an administrator of an intestate, and have the same as near ready for settlement and distribution by the time the will contest is determined, as is possible. Said section ex- pressly authorized appellee, as special administrator, to sell the personal property of said deceased. "^■- The policy of the law is to give the court complete and contin- uous jurisdiction over estates by special administration, so long as for any cause there is no person entitled to take charge of them under general letters; but it must be obsen-ed that the pro- ceedings in the general administration of an estate are separate and distinct from those under a si)ecial administration. In the latter the court acquires jurisdiction only for the purpose of the special administration.^^ The reasons for the appointment of a special administrator while a contest of the will is pending are obvious. They are that there mav be some one to act as curator of the estate to presence it, while the executor named in the will is not qualified to act. As soon as a final determination of the contest has established the validity of the will or otherwise, and thereby qualified the executor under it to act, or brought about the appointment of a regular administrator, the reasons for continuing a special one cease. The temporaiT administrator while in charge acts in the char- acter of a receiver, and should take charge of all the property, the right to which may be affected by the contest, to preserve it for those who may be entitled to it at the end of the suit. His duties commence from the date of the order of appointment, and if the decree in the action is appealed from his duties do not cease until the appeal has been disposed of. An appeal being a continuation of the suit.^* "Bruning v. Golden, 159 Ind. 199, ard's Estate, 141 Mo. 642, 43 S. W. 64 N. E. 657. 617; Brown v. Ryder, 42 N. J. Eq. " Damke's estate, 133 Cal. 433, 65 356, 7 Atl. 568 : Foster v. Rucker, 26 Pac. 888. ^lo. 494; Woerner Am. Law Admin., "Lamb v. Helm, 56 Mo. 420; Soul- § 181. § 57 EXECUTORS AND ADMINISTRATORS. 75 § 57. Powers of special administrator. — Such special ad- ministrator may prosecute suits to collect debts, secure the pos- session of and preserve the property of the decedent; and, under the direction of the court, may sell property of a perishable na- ture, after appraisement and notice, as in sales of personal prop- erty by an administrator.^^ The duties of a special administrator are to preserve and pro- tect the estate until it can be placed in the hands of the perma- nent executor or administrator.^*^ No authority is conferred upon him to pay claims or to make distribution of the funds in his hands. Nor will he be required to file an inventory. As he has no power to pay claims, so he has no power to allow them against the estate. All he is authorized to do is to receive and collect debts due the estate and to preserve the property of the estate pending the appointment of an administrator.^^ When a special administrator has been appointed it is pre- sumed that facts existed authorizing the appointment; and the fact that the showing made for an appointment is insufficient under the statute is no more than an irregularity which does not affect the jurisdiction of the court. ^* The principal duty of a special administrator being to preserve the estate, to accomplish this purpose he is necessarily vested with the same power as a general administrator; and while his ^ Burns' R. S. 1908, § 2754. he has in his hands, and which it is *" Woerner Am. Law Admin., § 181. his duty, under the statute, to hold or " Tomlinson v. Wright, 12 Ind. App. preserve until an administrator, duly 292, 39 N. E. 884. If it was conceded authorized to administer the same, is that a general administrator might, appointed. The statute certainly does under some circumstances, enter into not contemplate that a special admin- an agreed case or agree on the facts istrator shall administer an estate, in a case and invoke the judgment of His authority, as we have before ob- the proper court thereon, or if it was served, is limited to collecting the conceded that a special administrator debts and securing and preserving the in the collection of a debt might en- assets pending the appointment of the ter into an agreed case in relation general administrator, thereto, the question would yet remain " Lethbridge v. Lauder, 1.1 Wyo. 9, whether such special administrator Td Pac. 682; State v. Ayer, 17 Wash, could enter into such agreed case in 127, 49 Pac. 226. relation to money or property which 76 INDIANA PROBATE LAW. § 58 powers are limited yet whatever he does within the scope of his authority is biiKhng upon the estate.^" His power to sell property of the estate under this statute is limited to personal property, and only such personal proj^erty as is of a perishable nature. The functions of a special administrator continue until perma- nent letters are issued. It is not necessary that any application to revoke his letters be made before the appointment of a general representative. The very term temporary administrator suggests that the authority of such an officer is to be deemed extinguished by the issuance of permanent letters. The general rule that letters of administration, having once been properly issued, confer upon tlie appointee the right to fully administer the estate of the decedent, is modified by these statutes, and the duties and powers of a person appointed un- der them are such only as are specially granted. Such appointee has not the authority to complete the administration, and should be superseded as soon as the occasion for his appointment has passed. "^ § 58. Administrator of absentee. — There is another spe- cies of administration which is special in the method and char- acter of the appointment of the administrator, but general in the method and character of the administration of the estate. The occasion for such administration arises when any resident of this state shall have absented himself from his usual place of residence and gone to parts unknown, for a period of five years, " Woerner Am. Law Admin., 401. property of the testator or of the in- "" When the contest as to will is over testate until demanded by an executor and the executor qualifies the func- or administrator duly authorized to tions of a special administrator are at administer the same," a special ad- an end. RoBards v. Lamb, 89 Mo. ministrator has no power to enter into 303, 1 S. W. 222. One who is an in- an agreed case with the widow with different party should be appointed reference to the disposition of the pro- and not one of the litigants. Mootrie ceeds of an insurance policy on de- V. Hunt, 4 Bradf. (N. Y.) 173. Under cedent's life, collected by him as spe- Burns' R. S. 1908, § 2753, declaring cial administrator. Tomlinson v. that the powers of a special adminis- Wright, 12 Ind. App. 292, 39 N. E. trator are "to collect and preserve the 884. § 58 EXECUTORS AND ADMINISTRATORS. "JJ without having made any sufficient provision for the care and management of his property, real or personal, owned by him at the time he so absents himself, or which may be subsequently acquired by him, either by inheritance or otherwise, and when in such case, at any time, it shall be made to appear to the satisfac- tion of the court, having probate jurisdiction in the county where such person last resided, or where such property is situated, by complaint and proof, after thirty days' notice to such person, by puljlication in a newspaper of general circulation, published at the capital of the state, and also in a paper published in such county, if there be any, that such property is suffering waste for want of proper care or that the family of such person are in need of the use and proceeds of such property, for their support or education, (or that the sale of any such property, or part thereof, shall be necessary for the payment of his debts,) it shall be pre- sumed and taken by such court, that such person is dead, and the court shall have jurisdiction over the estate of such person in the same manner and to the same extent as if he were dead, and shall appoint an administrator of his estate, who shall have all of the powers and rights over such estate and be subject to all of the liabilities and duties in relation thereto that appertain to ad- ministrators of decedents' estates."^ This statute has been held to be constitutional, and as not con- travening either the federal or state constitutions.-" In construing a similar statute the United States Supreme Court in the case of Cunnius v. Reading School District, 198 U. S. 458, 49 L. ed. 1 125, 25 Sup. Ct. 721, held in substance that the right to regulate concerning the estate or property of absentees is an attribute which in its essence belongs to all governments to the end that they may be able to perform the purposes for which gov- ernment exists, and is within the scope of a state government in the absence of restrictions in its own constitution, and the exercise of this power by the state does not necessarily violate the four- " Acts 1911, p. 676, amending § 2747 -Barton v. Kimmerley, 165 Ind. Burns' R. S. 1908. 609, 1(y N. E. 250, 112 Am. St. 252. y8 INDIANA PROBATE LAW. § 59 teenth amendment of the federal constitution, by depriving the absentee of his property without due process of law in case he be alive when the proceedings are begun. -^ § 59. Same — Powers of administrator. — This statute be- ing in derogation of the common law must be strictly construed, and nothing may be read into it that its words do not fairly im- port. An administrator appointed thereunder must be careful in all respects to comply with the statute. The statutes relating to his powers and duties are as follows : The property of such departed person real and personal, and all his rights, obligations and choses in action, shall be subject to the same liabilities, incidents, rights, management and disposal in all respects as if such person were known to be deceased, and all adjudication and acts done by such administrator shall be valid, effectual and binding on such person, should he return, as if they were his own acts, the acts and doings of such adminis- trator being in good faith and without fraud.-* Such administrator shall not be discharged on the return and reappearance of such person until discharged by the court, but shall retain his powers and rights and be subject to all his official liabilities and duties until so discharged."^ In selecting an administrator under the provisions of these statutes the court may apply the test of the statute relating to ^ In the matter of Nolting, 43 Hun surrogate, was sufficient to justify the (N. Y.) 456, it appeared that the al- issuing of letters of administration, leged decedent had left his home un- and that the surrogate erred in refus- der the depression following an attack ing to do so. Redf. Sur. Prac. 153. of delirium tremens, declaring his in- The fact that a passenger on an tention to commit suicide, and had ocean vessel was last seen about 10 gone toward the river ; that thereafter o'clock at night, when the steamer was he had not been heard from for more in midocean, and was never seen or than ten years, although previously he heard of afterwards, though diligent had communicated regularly with search was made, is sufficient to justi- his relatives. Held that, from his fy a finding that he is dead. Travel- silent absence during ten years, the ers' Ins. Co. v. Rosch, 23 Ohio C. C. law would raise a presumption of his 491. death, which, coupled with the facts ^Burns' R. S. 1908, § 2752. and circumstances produced to the ^ Burns' R. S. 1908, § 2749. § 6o EXECUTORS AND ADMINISTRATORS. 79 applicants for letters of general administration as to order of preference, qualification and fitness.-" If the requirements of the statute have been observed in mak- ing the appointment the validity of the proceedings will not be affected by the fact that the absentee was in truth alive. It is not necessary to show that he is dead.-^ The absentee is not required to have been a resident of the county where an application for letters is made. Letters may is- sue in the county where he last resided or in some county where his property is situated. It is sufficient to show that he had been a resident of this state prior to his disappearance. The court can then take jurisdiction to make an appointment in either county.-^ Under statutes such as these it has been held that they operate upon the estates of persons whose absence began before the pass- age of the statute.-^ After the appointment of an administrator of the estate of an absentee, so far as the property of such person is concerned, the situation is the same as if he was actually dead, and the wife of such departed person shall have all the rights and independent powers of feme sole to make contracts and execute deeds and ac- quittances for herself, from the time of the appointment of such administrator until the return of her husband and the resump- tion of his rights as such husband. ^"^ § 60. Same — Presumption of death. — At common law one was not presumed dead until after an unexplained absence of seven years ; but there is no presumption as to the time of death within the seven years, and in the absence of proof the absentee is presumed to be living for seven years from the time of his dis- appearance.'^ =« Savings Bank v. Weeks, 110 Md. 78, 72 Atl. 475, 22 L. R. A. (N. S.) 78, 72 Atl. 475, 22 L. R. A. (N. S.) 221. 221. ^"Burns' R. S. 1908, § 2750. "Romy V. State, 32 Ind. App. 146, ^ Lawson Presumptive Ev., 255; 67 X. E. 998. Schaub v. Griffin, 84 Md. 557, 36 Atl. =*Romy V. State, 22 Ind. App. 146, 443; In re Mutual Benefit Co., 174 67 N. E. 998. Pa. St. 1, 34 Atl. 283, 52 Am. St. 814, '' Savings Bank v. Weeks, 110 Md. 2 Best on Ev., § 408. 80 INDIANA PROBATE LAW. § 60 The statutes here under consideration have a limited applica- tion and do not include cases lyin<^ outside the letter of them, and in cases not connected with administration of the estates of absentees the common-law rule as to the presumption of death still obtains." The presumption therefore specified in the statute must be limited to the settlement of the estates of absentees. The statute is as follows : The presumption of death, in the case of any person who has absented himself from his usual place of residence and gone to parts unknown, or who has not been heard of for the period of five years, shall relate back to the time of the first disappearance of such absentee; and it shall be presumed and taken by all courts that such absentee was dead on the first day of his disappearance: Provided, however, That this section shall not apply to any suit now pending-; neither shall the party holding or entitled to the proceeds of any policy of insurance upon the life of such absentee, where the five years have expired prior to the passage and taking effect of this act, and whose duty it is to make proof of the death of such absentee, be recjuired, when such proof is not prohibited by the contract with the insurer to make other proof of death than '= Connecticutt Mut. Life Ins. Co. v. such. It was held in said case that, King. — Ind. App. — , 93 N. E. 1046. under a law giving jurisdiction to a In Scott V. McNeal, 154 U. S. 34, 38 L. court to administer estate of deceased ed. 896, 14 Sup. Ct. 1108, the facts and persons, the issuance of letters of ad- the court's holding were to this effect : ministration upon the estate of a per- The probate court in the state of son who is in fact alive was void and Washington had, under an act for the of no effect as against him. In Fleet- settlement of decedents' estates, issued wood v. Brown, 109 Ind. 567, 9 N. E. letters of administration upon the 352, 11 N. E. 779, it is held that where estate of a person who had disap- the owner of lands is absent and not peared, and proceeded to administer heard from for five years or more, his estate as that of a dead person, that a conveyance of such lands by upon the presumption of death which persons who would inherit the same said court assumed has arisen from in the event of the death of such his absence. There was no law in owner, would not vest any title in a that state providing for the adminis- purchaser from such supposed heirs tration of the estate of an absentee as when such owner was not in fact dead. 6o EXECUTORS AND ADMINISTRATORS. 8i the fact of the disappearance of the insured for five years con- tinuously/^ It is conckisively presumed, in a collateral proceeding, that a man is dead when letters of administration are granted upon his estate by the proper tribunal.^* By these statutes, for the purpose of preserving his estate and paying his debts, a man is presumed to be dead after an absence of five years." The general rule is, that letters of administration, granted upon the estate of a living person, are absolutely void, and it makes no difference if, through his absence long continued, a presumption of death has arisen. In such case the presumption may be over- thrown, and a decree granting letters may be collaterally im- peached.^*^ The above statutes change this rule, and for the purposes set out in the statutes, an administration under them upon the estate of absentee is as valid and binding as if tlie absentee were really dead. » Burns' R. S. 1908, § 2748. "Jenkins v. Peckinpaugh, 40 Ind. 133. "Jones V. Detchon, 91 Ind. 154; Fleetwood v. Brown, 109 Ind. 567, 9 X. E. 352, 11 X. E. 779. In Baugh v. Boles, 66 Ind. 376, the court says : "It has long been an accepted rule of law, both in England and in this country, that where a person has left his usual place of abode, and no intelligence concerning him has been received by his relatives, or by those who would probably hear from him, if living, after the lapse of seven years the pre- sumption of life would cease, and such person would be presumed to be dead." After referring to the statute providing for the settlement of estates of absentees, the court continues: "It seems to us, therefore, that, under the allegations of the appellee's com- plaint and the statute of this state ap- plicable thereto, Henry Baugh was presumptively dead, after he had been gone from the state for five years, and no tidings received of or from him by his family within that time. After the lapse of the five years, the appellee, as a creditor of Henry Baugh, could have procured the appointment of an ad- ministrator of his estate, and, under the facts stated in the complaint, such administrator could have procured an order from the proper court for the sale of the lot in controversy, for the payment of such decedent's debts." " Jochumsen v. Suffolk Sav. Bank, 3 Allen (Mass.) 87; Devlin v. Common- wealth, 101 Pa. St. 273, 47 Am. Rep. 710; Hooper v. Stewart, 25 Ala. 408, 60 Am. Dec. 527 ; Griffith v. Frazier, 8 Cranch (U. S.) 9, 3 L. ed. 471; Fisk v. Xorvel, 9 Tex. 13, 58 Am. Dec. 128. 6 — Pro. L.\w. 82 INDIANA PROBATE LAW. § 6 1 § 61. Administrators de bonis non. — If any executor, ad- ministrator with the will annexed, or administrator, shall die, re- sign, remove from the state, or his authority be revoked or super- seded, the remaining executor or administrator shall complete the administration of the estate; but if no such executor or adminis- trator be remaining in the state, the proper clerk or court shall grant letters of administration, or of administration with the will annexed, to any person entitled thereto, under the same regula- tions as in case of issuing the original letters; and which admin- istrator, or administrator with the will annexed, thus appointed de bonis non, shall have the same rights and be subject to the same liabilities as the executor or administrator first appointed. ^^ The administrations de bonis non and cum testamento annexo provided for in this statute are supplementary administrations, and are based upon the fact that there is a vacancy in the pre- ceding administration, and if there is no such vacancy the grant of letters of administration de bonis non or cum testamento an- nexo is void. An administrator de bonis non is appointed when a former administrator has partially administered an estate and has died, or has not from any cause fully administered. It is the duty of an administrator de bonis non to complete the administration and for this purpose he is vested with the same power as a general administrator. What are technically known as administrators de bonis non, cum testamento annexo, are those who are appointed to complete the execution of a will, when the executor has com- menced administering and dies, or otherwise becomes incapable, or is removed.^* If the resident executor or administrator cease from any cause ^' Burns' R. S. 1908, § 2756. An ad- dence of such assets is all that is re- ministrator de bonis non may be ap- quired. Scott v. Fox, 14 Md. 388; pointed where the original administra- Hendricks v. Snodgrass, Walk, tor has reduced all the assets of the (Aliss.) 86. The appointment of an estate to money. Donaldson v. Ra- administrator generally without add- borg, 26 Md. 312. Letters of adminis- ing the words de bonis non is not tration de bonis non must be granted void. Moseley v. Mastin, Ala. Sel. in every case where there are unad- Cas. 171. ministered assets. Prima facie evi- ^^ Bouvier Inst. 144. 62 EXECUTORS AND ADMINISTRATORS. 83 to be such, it is the duty of the clerk cr court to appoint an ad- ministrator, resident in the county w^ ere the estate is to be ad- ministered, de bonis non.^^ An administrator de bonis non may be appointed even where the former administrator has reduced all the assets of the estate to money, but has not paid it out.*° An administration de bonis non should be granted where there are debts unsatisfied although the former administrator has dis- tributed the estate.^^ § 62. Same — There must be a vacancy. — Before an admin- istration de bonis non will be granted there must be a vacancy, and the rule formerly was that such vacancy must occur prior to the final settlement of the estate. It being held that after final settlement of an estate all matters pertaining to the ordi- nary settlement of the estate were res adjudicata; and that so long as such final settlement was in force unrevoked, letters of ^ Ewing V. Ewing, 38 Ind. 390. *' Donaldson v. Raborg, 26 Md. 312. *^ Brattle v. Converse, 1 Root (Conn.) 174. An estate is not fully administered upon so long as any- thing remains to be done to vest the title of the estate in the beneficiary, whether a creditor, devisee, legatee or next of kin, which no one but the administrator can do. Such would be paying a legacy or distributing the assets. Alexander v. Stewart, 8 Gill & J. (Md.) 226; University v. Hughes, 90 X. Car. 537; Scott v. Crews, 72 Mo. 261. Likewise one may be appointed to defend a suit, even though all the assets have been distributed for the purpose of de- fending the distributees. Scott v. Crews, 72 Mo. 261; Hayward v. Place, 4 Dem. (X. Y.) 487. If the to an estate. Hinton v. Bland, 81 Va. 588. But such an administrator cannot be appointed solely to make a conveyance of real estate which the former administrator failed to make. Grayson v. Weddle, 63 Mo. 523; Long v. Joplin Mining &c. Co., 68 Mo. 422. The owner of a claim against an estate, holding unadmin- istered property, may properly pro- cure the appointment of an admin- istrator de bonis non to take posses- sion of the property and surrender the property to him. Deans v. Wil- coxon, 25 Fla. 980, 7 So. 163. An administrator, who was one of the residuary legatees, having partly ad- ministered the estate, left his home, and, though several years had elapsed no trace of him could be discovered. It was held that the court might re- final settlement of an administrator voke the grant made to him, and be set aside an administrator de make a fresh grant de bonis non to bonis non may be appointed. Byerly another of the residuary legatees. In v. Donlin, 72 Mo. 270. So one is re Covell, 15 Prob. Div. 8. necessary where money is to be paid 84 INDIANA PROBATE LAW. § 6^ administration de bonis non could not be issued on the estate, nor any further administr tion permitted thereon by any exec- utor or administrator, however appointed." When letters of administration de bonis non are attacked on the ground that there is no vacancy, the fact that there was no vacancy must affirmatively appear, as the presumption is in favor of the letters." It must be shown that something remains to be done in the settlement of an estate before an administration de bonis non will be granted thereon; but the mere fact that a prior admin- istrator had been discharged because he could find no assets be- longing to the estate does not preclude the appointment of an administrator de bonis non for such estate.** There can never be any valid appointment of an administrator de bonis non until there is in some way a vacancy in the adminis- tration. Such vacancy may arise through the resignation, re- moval or death of the general administrator or executor, or after their discharge upon a final settlement of the estate. When a final settlement made by a deceased former admin- istrator has been set aside an administrator de bonis non should be appointed for the estate.*^ And an administrator de bonis non is a necessary party where money is to be paid to the estate.*® § 63. Same — There must be assets. — The term de bonis non has a strict and limited meaning, and being strictly inter- preted is "of the goods not yet administered." At common law an administrator de bonis non succeeds to the rights which be- longed to the first executor or administrator, and is entitled to re- cover such assets of the estate as remain unadministered in specie, and such of the debts due the decedent as remain unpaid. *^Pate V. Moore, 79 Ind. 20; Vestal Brockenborough v. Melton, 55 Tex. V. Allen, 94 Ind. 268; Croxton v. 493. Renner, 103 Ind. 223, 2 N. E. 601 ; " Langsdale v. Woollen, 99 Ind. Carver v. Lewis, 104 Ind. 438, 2 N. 575; Langsdale v. Woollen, 120 Ind. E. 705. 78, 21 N. E. 541. "Bean v. Chapman, 73 Ala. 140; ** Byerly v. Donlin, 72 Mo. 270. ^'Hinton v. Bland, 81 Va. 588. § 63 EXECUTORS AND ADMINISTRATORS. 85 But his authority does not extend to assets already adminis- tered.*' One author says : "There must also be assets remaining to be administered, otherwise there is no necessity for the supple- mentary appointment. This second fact, however, need not be conclusively established. If a prima facie case of assets is made out, it is sufficient to give the court power to appoint such an administrator, and leave it to the common-law courts to settle the title to the property. A claim which the former executor was prosecuting is an asset. But it has been held that the claim that, if a certain judgment at common law is pronounced fraudulent and void by a court of common law, certain property will be- come assets, is not enough to support administration with the will annexed, because the probate court cannot undertake to settle rights of property, but must decide on a prima facie right."*^ After the appointment and qualification of an administrator de bonis non he is entitled to all the assets belonging to the estate whether they remain in specie or have been misappropriated or converted by the former administrator. If they remain in specie the title to them vests at once in the administrator de bonis non and he may recover them from any one who detains them wrong- fully. But if the general administrator has converted or mis- appropriated the assets of the estate the remedy of the adminis- trator de bonis non is upon the bond of such general adminis- trator. The assets of an estate remaining unadministered at the time of the appointment were, at common law, all the estate to which the authority of an administrator de bonis non extended. He was entitled to all the goods and personal estate, which remained in specie, and were not administered by the first executor or ad- ministrator, as well as to all debts due and owing to the testator or intestate.*® An executor or administrator who has been removed from his trust may be compelled by his successor, the administrator de *^8 Ency PI & Pr. 654; Ormes' *«Croswell Extrs. & Admrs. 132. Estate V. Brown, 22 Ind. App. 569, "Bacon's Abridg. 20; Tingsey v. 52 N. E. 1005. Brown, 1 Bros. & Pull. 310. 86 INDIANA PROBATE LAW. § 64 bonis non, to pay and deliver over to such successor, assets of the estate remaining in his hands. ^"^ Assets omitted from a former administration justify the ap- pointment of an administrator de bonis non and for such pur- pose the final settlement by the general administrator need not be set aside, and such final settlement continues to be a final ad- judication as to all matters involved in it except such unadmin- istered assets.''^ § 64. Same — Time within which appointment may be made. — The statute does not limit the time within which an administrator de bonis non may be appointed. In the absence of any statute of limitation upon the subject the general rule is that as long as there are assets remaining unadministered such an ad- ministrator may be appointed ; this upon the theory that the office does not end until all outstanding assets of the estate have been administered upon.^" One author saying upon this subject, "the administration de bonis non may be granted after any length of time, but lapse of time and other circumstances may raise a presumption that all debts against an estate are barred or paid, and that the remain- ing assets belong to the heirs, in which case the administration cannot be reopened by the appointment of an administrator de bonis non. If nothing remains to be done to complete an admin- istration the grant of letters de bonis non is merely nugatory."^' Nor do the limitations as to time within which the original letters of administration must be taken out apply to this species of administration.^* § 65. Same — Devastavit of former administrator. — At common law there was no remedy against the representative of a deceased executor or administrator for a devastavit committed ""• Kelly V. Weddle, 1 Ind. 550. 179 ; Dodge v. Phelan, 2 Tex. Civ. ^ Michigan Trust Co. v. Probasco, App. 441, 21 S. W. 309. 29 Ind. App. 109, 63 N. E. 255. "Bancroft v. Andrews, 6 Cush. ■^Taylor V. Thorn, 29 Ohio St. 569; (Mass.) 493; Neal v. Charlton, 52 Lafferty v. Shinn, 38 Ohio St. 46. Md. 495. "Woerner Am. Law Admin., § 6; EXECUTORS AND ADMINISTRATORS. 87 by such decedent upon the principle that it was a personal tort and died with the person."^ For this reason an administrator de bonis non could not call the representatives of the previous deceased administrator of his intestate to account for any prop- erty of the intestate, that such predecessor had converted or wasted. He could only recover such goods, chattels, and credits of his intestate as remained in specie and were capable of being clearly identified as the property of his intestate. ^*^ The two ad- ministrations were held to be distinct, each being vested with peculiar duties and responsibilities; and in the event of a de- vastavit committed by either, the heirs, creditors, and persons whose legal rights were affected had a right of action against the defaulting administrator, but no such right existed in favor of an administrator de bonis non.^' From this it will be seen that if an administrator de bonis non now has any right of action against his predecessor, either per- "Tucke's Case, 3 Leon 241; Browne v. Collins, 2 Ventr. 292. But this rule was changed by statute 4 and 5 W. & M., Ch. 24, p. 812, provid- ing that the executors or administra- tors of any executor or administra- tor, whether rightful or of his own wrong, who shall waste or convert to his own use the estate of his testa- tor or intestate, shall be liable and chargeable in the same manner as their testator or intestate would have been, if they had been living. Cole- man v. M'Murdo, 5 Rand. (Va.) 51; Wheatley v. Lane, 1 Saund. 216. ^' 3 Bacon Abridg. 19, 20 ; Hagthorp v. Hook, 1 Gill & J. (Md.) 270; .An- thony V. McCall, 3 Blackf. (Ind.) 86. " In Young v. Kimball, 8 Blackf. (Ind.) 167, the court says: "The main question arising in the case is whether the bill will lie? It charges a devastavit, a conversion of the goods of the intestate to the use of the administrator. If the commis- sion of a devastavit by an administra- tor amounts to an administration of the goods of the intestate to the ex- tent of the devastavit, then neither a bill in chancery nor suit at law can be maintained against the represen- tative of such administrator by the administrator de bonis non for a re- covery of the value of the goods, &c., included in the devastavit, for the plain reason that the power and duty of an administrator de bonis non, by the terms of his commission, extend only to the unadministered goods, &c., of the deceased. That a de- vastavit does constitute such an ad- ministration as places the goods (and the value of them), converted or wasted, beyond the authority of an administrator de bonis non, seems settled by all the authorities; though it does not constitute such an ad- ministration as discharges the ad- ministrator, guilty of the wrong, from 88 INDIANA PROBATE LAW. § 65 sonally or against his estate, if he be dead, such right must be found in some statute, for it did not exist at common law.^* This common-law rule has not been changed in this state. There is, however, a statute by force of which an administrator de bonis non is given a right of action for a devastavit of his predecessor, but such right of action is upon the bond of the former executor or administrator. The statute provides that any executor or administrator may be sued on his bond by any sur- viving or succeeding executor or administrator, co-executor or co-administrator of the same estate, and specifying the various causes, which statute will be considered more fully in another place. °" Under this statute an action will lie in favor of an administra- tor de bonis non against the administrator of a deceased surety of the original administrator. *'" liability under the statute to those in- terested." ^^Ormes' Estate v. Brown, 22 Ind. App. 569, 52 N. E. 1005; Lucas v. Donaldson, 117 Ind. 139, 19 N. E. 758. In the Ormes' Estate case the court said: "As the only right of action given by statute to an admin- istrator de bonis non for a conver- sion of any part of the personal as- sets of the estate of his predecessor is upon his official bond, and as an action will not lie in his favor for a tort of his predecessor, as such tort dies with him, it follows that, as the complaint proceeds upon the latter theor}^, it was wholly insufficient." '' Burns' R. S. 1908, § 2981 ; Cullen V. State, 28 Ind. App. 335, 62 N. E. 759; Sheeks v. State, 156 Ind. 508, 60 N. E. 142 ; Myers v. State. 47 Ind. 293 ; Day V. Worland, 92 Ind. 75 ; Graham V. State, 7 Ind. 470, 65 Am. Dec. 745; State V. Porter, 9 Ind. 342; Ormes Estate V. Brown, 22 Ind. App. 569, 52 N. E. 1005. "» State V. Porter, 9 Ind. 342. "The statute means, that the action may be brought by a surviving or co-execu- tor or co-administrator, or by a suc- ceeding administrator; that is, one who has taken the place of or suc- ceeded another — a subsequent one. The provision that no costs shall be taxed against the estate, 'unless it is brought by such surviving, succeed- ing or co-executor, or co-administra- tor,' if the construction were other- wise doubtful, shows, we think, that such was the intention of the legisla- ture. It was manifestly the intention to include an administrator de bonis non." Myers v. State, ex rel., 47 Ind. 293. In Barnett v. Vanmeter, 7 Ind. App. 45, 33 N. E. 666, it is said: "In case of suit by him, he need only aver that he is the administrator, and need not make profert of his let- ters, nor can his right to sue be ques- tioned unless the defendant files a plea under oath denying such right, and such a pleading is in abatement and not in bar." § 66 EXECUTORS AND ADMINISTRATORS. 89 And where an administrator de bonis non has obtained a judg- ment against his predecessor and the sureties on his bond for assets of the estate converted by such predecessor, he may, with- out proceeding to collect such judgment from the sureties, main- tain an action to set aside a fraudulent conveyance of his real estate made by such former administrator." The court says: "As the debt was due the estate, it was not only such adminis- trator's right, but his duty to take measures to collect it by en- forcing the judgment. It is plain, therefore, that he had author- ity to make clear his way to property subject to his lien by remov- ing the apparent claims of fraudulent grantees. In removing these claims he simply reduced to an available form a claim that had previously been adjudged to be a part of the assets of the estate represented by him."®^ § 66. Same — Right to sue. — Where a note has been made payable to an executor or administrator as such, it will be pre- sumed that such note was given for a debt due the estate, and an administrator de bonis non may maintain suit upon such note in his representative capacity.** And in such action by an admin- " Duffy V. State, 115 Ind. 351, 17 in specie. Brownlee v. Lockwood, N. E. 615. Devastavit is a violation 20 N. J. Eq. 239. of duty by the executor or adminis- "^ Duffy v. State, 115 Ind. 351, 17 trator such as renders him personally N. E. 615; Harvey v. State, 123 liable for mischievous consequences, Ind. 260, 24 N. E. 239. a wasting of the assets a misman- " Sheets v. Pabody, 6 Blackf. agement of the estate and effects of (Ind.) 120, 38 Am. Dec. 132. The the deceased in squandering and mis- court, in this case, in considering applying the assets contrary to his this question, says : "Several old duty. Steel v. Holladay, 20 Ore. 70, cases may be found, in w^hich it w^as 25 Pac. 69, 10 L. R. A. 670. In the considered that the contracts made absence of a statute an administrator with an executor or administrator de bonis non cannot sue his prede- were personal to him, and that he cessor, either directly or on his ad- must sue for them in his own right, ministration bond for delinquencies and not in his representative capac- or devastavit. Beall v. New Mexico, ity. * * * However, the rule may 16 Wall. (U. S.) 535, 21 L. ed. 292; now be regarded as firmly established Carter v. Trueman, 7 Pa. 315; Rives by the more recent cases, that wher- V. Patty, 43 Miss. 338. The adminis- ever the money recovered will be as- trator de bonis non is only entitled to sets, the executor may sue for it and such unadministered assets as remain declare in his representative char- 90 INDIANA PROBATE LAW, § 66 istrator de bonis non, the complaint should state the name of the first executor or administrator, and contain an averment of non- payment to him; also of non-payment to the decedent, as well as an averment of non-payment to such administrator de bonis non.*^* An administrator de bonis non alone has the right to sue upon a note belonging to the estate, and made payable to a former executor of the estate, the will having been set aside and the letters testamentary revoked. "'^ After a judgment has been ren- dered ill favor of an administrator de bonis non, on a note pay- able to a former administrator of the estate, the presumption will be that the note belonged to the estate.*"' A debt barred by the statute of limitations is not taken out of the operation of the statute by a part payment to one who is afterward appointed administrator de bonis non of the estate to which the debt was owing.'^' In an action begun by a former administrator objections to the manner of the appointment of the administrator de bonis non must be made in the lower court or they will not be noticed in the Supreme Court. "^^ The heirs of an intestate having recovered a judgment against the administrator and heirs of a former administrator, an action acter." It is further said, "that if pacity, and not in his own individual the administrator dies intestate with- right." out having sued upon such a promise "Vanblaricum v. Yeo, 2 Blackf. (that is, a promise to himself that (Ind.) 322; Griiifith v. Fischli, 4 the money when recovered would be Blackf. (Ind.) 427. In Cromwell v. assets), — the administrator de bonis Barnes, 58 Ind. 20, where the aver- non may sustain an action upon it; ment of non-payment was, "that the for he succeeds to all the legal rights residue thereof, with interest, is due which belonged to the administrator and unpaid," the court said: "The in his representative capacity." In averment of non-payment of the note. Leach v. Lewis, 38 Ind. 160, it is said : being general, was broad enough to "The note being payable to the plain- negative payment to said deceased." tiff in his fiduciary capacity, it is to ^ Leach v. Lewis, 38 Ind. 160; be presumed, in the absence of any Cromwell v. Barnes, 58 Ind. 20. showing to the contrary, that the ''^ Williams v. Williams, 1 Ind. 450. money was to be due him in that ca- " Kisler v. Sanders, 40 Ind. 78. «'Mahon v. Mahon, 19 Ind. 324. § 67 EXECUTORS AND ADMINISTRATORS. 9 1 to enforce such judgment cannot be maintained by an adminis- trator de bonis non of the original intestate.*'^ If an administrator, in selHng real estate of his intestate, in- stead of receiving money therefor receives credit for the amount of the purchase-money upon his individual indebtedness to the purchaser, it is no payment to the estate, and the administrator de bonis non may sue to recover the money or set aside the sale." § 67. Same — Admissions. — Where payment for property belonging to an estate has been made to a former administrator, his admissions are proper evidence in a suit by the administrator de bonis non to recover the value of the property. Such admis- sions are not conclusive, but, like admissions made by parties to an action, they are competent. An executor or administrator is neither an agent nor an officer within the ordinary acceptation of those temis. He may be said, in some sense, to step into the shoes of the deceased. He represents the deceased, and has the care and management of his personal estate. His admissions are competent evidence against the estate in actions where the estate is represented by the executor or administrator making such ad- missions. And the estate is equally affected by the admission, whether the subject-matter of it arise in a suit where the same •* Ferguson v. Sweeney, 6 Blackf. nett v. Vanmeter, 7 Ind. App. 45, 33 (Ind.) 547. ^'- E. 666, the court says: "When '"Wallace v. Brown, 41 Ind. 436. the appointment has been made, the In Chandler v. Schoonover, 14 Ind. administrator, as we have seen, oc- 324, the court says: "As a general cupies the same position that a gen- rule, an administrator, upon a sale eral administrator does. After the of his intestate's property, is not au- appointment, the same cannot be at- thorized to receive in payment any- tacked in a collateral proceeding, and thing other than money. Evidently, every presumption will be in favor of he has no power to apply the proceeds its validity. * * * In case of suit of the sale of the intestate's property by him, he need only aver that he is in discharge of his own individual the administrator, and need not make liabilities, because the exercise of profert of his letters, nor can his such a power would be inconsistent right to sue be questioned unless the with his prescribed duties as admin- defendant files a plea under oath de- istrator, and would, in our opinion, nying such right, and such a pleading be against public policy." In Bar- is in abatement and not in bar. 92 INDIANA PROBATE LAW. § 68 executor or administrator is a party, or in a suit where a suc- cessor in the administration is a party.^^ § 68. Same — Appointment after final settlement. — Prior to 1891 no administration de bonis non could be granted upon an estate which had been finally settled under a previous adminis- tration. The rule being that so long as the final settlement re- mains unrevoked, it is in relation to all matters pertaining to the ordinary settlement of the estate res adjudicata, and letters of administration de bonis non cannot be issued upon such estate, nor any further administration thereof permitted.'^" But this rule has been changed by statute and while the final settlement made in a prior administration still remains res ad- judicata as to all matters property involved therein, the statute now enables parties interested to have the estate opened up as to omitted and unadministered assets and in effect provides that as to any assets not formerly administered the settlement shall not be final. The statute reads as follows : "Whenever hereafter it shall be shown to the satisfaction of any court of probate jurisdiction of this state that the administrator or executor of the estate of any decedent has been finally discharged and that there is no administration of said estate pending in any court of this state, and that there are assets belonging to the estate of said decedent within the jurisdiction of said state that have not been and should be administered, then upon application of any creditor or legatee whose debt or legacy, in whole or in part, re- " Eckert v. Triplett, 48 Ind. 174, 17 the estate is represented by his suc- Am. Rep. 735 ; Slade v. Leonard, 75 cesser in the administration. * * * Ind. 171 ; Clouser v. Ruckman, 104 The direct authorities upon this point Ind. 588, 4 N. E. 202. The court in are not numerous. Indeed, we are Eckert v. Triplett, 48 Ind. 174, 17 aware of only one American case Am. Rep. 735, said : "When an exec- exactly in point. That is the case of utor or administrator makes an ad- Lashlee v. Jacobs, 9 Humph. (Tenn.) mission which would be competent 718." evidence against the estate in an ac- "^ Pate v. Moore, 79 Ind. 20 ; Crox- tion where the estate is represented ton v. Renner, 103 Ind. 223, 2 N. E. by the same executor or administra- 601 ; Barnett v. Vanmeter, 7 Ind. tor, we see no satisfactory reason App. 45, 33 N. E. 666. why it should not be competent when § 68 EXECUTORS AND ADMINISTRATORS. 93 mains unpaid, or of any person entitled to share in the distribu- tion of said estate, such court may appoint an administrator de bonis non of said estate, who shall be required to file bonds, inventories and reports, and have the same powers now given to administrators and executors by law, and be governed m all things by the laws now in force or that may hereafter be enacted for the settlement of decedents' estates."" It was intended by this statute to reach, for the benefit of creditors legatees or distributees any assets which had escaped the former administration. Under it a creditor, heir or legatee, upon a proper showing, and without any attempt to first open the final settlement, may have the court appoint an administrator de bonis non for the purpose of collecting such unadmmistered assets and applying them to the payment of debts or legacies, or distributing them to the proper persons. Such administrator de bonis non after his appointment proceeds in all respects as other administrators in the settlement of the estate.*"' \n administrator appointed under this statute is given the same power and charged with the same duties as a general ad- ministrator. Such appointment cannot be attacked collaterally and everv presumption is in favor of its validity.'" This statute does not dispense with the provisions of § 2925, Burns' R. S. 1908, relating to the setting aside of final settlements, and within the time given by that section, such settlement may be opened and the remaining assets administered either by the orig- inal administrator or an administrator de bonis non independ- entlv of the above statute. The remedy afforded by this last statute is purely cumulative; and it apphes as well to estates m which final settlements were made before the passage of the act as after. In this far it may be said to be retroactive m its effect. " Burns' R. S. 1908, § 2757. v- Vincennes, 34 Ind. App. 667, 72 N. ^* Barnett V. Vanmeter, 7 Ind. App. E. 166. ^ Probasco, 29 Ind. App. 109, 63 N. 45, ^l^\f^'^^ 3, j,, E. 533. Ac. "Mich Trust Co V Probasco, 29 March Sth, 1891, providing that on a Ind App. W 63 N-. E.255; Cu'llop showing that an adnnn.s.ra.or has 94 INDIANA PROBATE LAW. § 69 What was lawfully done in the settlement of the estate by the former administrator is binding upon the administrator de bonis non, but not that which was done unlawfully." Where a claim due an estate never came to the knowledge or possession of an administrator and the estate was finally settled without administering on such claim, an unpaid creditor of such estate can only reach such claim to make it assets for the payment of his debt, through an administrator de bonis don.'® § 69. Executor de son tort.— One, who being neither ex- ecutor nor administrator, yet takes it upon himself to intermeddle with the goods of the deceased, or do some act characteristic of the office of executor, thereby makes himself what is called in law an executor of his own wrong; an executor de son tort.''' He is so called because the "most obvious conclusion which strangers can form from his conduct is that he hath a will of the deceased, wherein he is named executor, but hath not yet taken probate thereof."^^^ It has been held that the following acts will constitute one an executor de son tort : taking a bible ; a bedstead ; killing cattle of the deceased; using, selling, or giving away goods of the de- ceased; taking such goods to satisfy one's own debt or legacy; demanding debts of the decedent; making acquittances therefor, or receiving the same; selling the goods of the deceased after his death by directions given before his death.'' The policy of the been finally discharged, that no ad- made and approved, before the pass- ministration is pending, and that age of the act. Wahl v. Schierling, there are assets within the jurisdic- 11 Ind. App. 696, 39 N. E. 533. tion of the state which have not been, "Martin v. Ellerbe, 70 Ala. 326;, but should be, administered, a court Weeks v. Love, 19 Ala. 25; Fay v. of probate having jurisdiction may, Muzzey. 13 Gray (Mass.) 53, 74 Am. on the application of any unpaid Dec. 619. creditor or legatee, or of any one en- '' Postal v. Kreps, 23 Ind. App, titled to share in the estate, appoint 101, 54 N. E. 816. an administrator de bonis non with '" Williams Extrs., § 257. the powers of an administrator, ap- ^"2 B. L. Com. 507. plies to estates administered upon, " Williams' Extrs. 225. and in which final reports had been § 70 EXECUTORS AND ADMINISTRATORS. 95 law has been to prevent all improper interference with the prop- erty of a decedent. There is usually some delay before a regular executor or administrator can be appointed and clothed with power to act, and it is during this time that acts of unwarrant- able intermeddling generally take place.^" § 70. Same — The statute. — While our courts use freely the term executor de son tort, such an expression is unknown to our statutes. Such persons are called intermeddlers, the statute as to them providing: Every person who shall unlaw- fully intermeddle with any of the property of a decedent shall be liable therefor in any court of competent jurisdiction. Such action may be brought by the executor of the decedent or the administrator of his estate, or, if there be none such, then by any creditor or heir of the decedent, and shall be for the use of the estate of the decedent. The defendant in such action may be examined, under oath, touching such alleged intermeddling, and testimony thus elicited shall not be used against him in any prosecution. The defendant shall be liable in such action to a judgment for the full value of the property converted, or to the extent of the injury to said estate occasioned by such intermed- ling and ten per cent, damages in addition thereto. Execution on such judgment shall not be subject to stay of replevin bail, and shall be without relief from valuation or appraisement laws, and returnable in ninety days. The court may adjudge a return to the executor or administrator (or, if there be none, to such person for the time being as the court may appoint) of any goods or choses in action remaining in the control of the defendant, " Leach v. Prebster, 35 Ind. 415. A characteristics of a regular execu- void administration fraudulently pro- torship. The writers of the ecclesi- cured may render the administrator astical courts define an executor de liable, a' person acting under void son tort as one who takes upon him- letters may be treated as an executor self an office of executor by intru- de son tort. Bradley v. Common- sion, not being so constituted by the wealth, 31 Pa. St. 522; Williams deceased, nor for want of such con- V. Kiernan, 25 Hun (N. Y.) 355; Da- stitution substituted by the ecclesias- mouth V. Klock, 29 Mich. 290. This tical court to administer. Croswell species of executorship, although ille- Extrs. & Admrs., 137. gal in its inception, has some of the 96 INDIANA PROBATE LAW. § 7 1 and may enforce compliance with any judgment in the premises by attachment and imprisonment, in the discretion of the court. If no administration of the estate is pending, the court shall pro- vide for the safe keeping of the assets or damages recovered until an executor or administrator, as the case may be, shall be duly appointed. Any creditor or heir recovering judgment as aforesaid shall be allowed a reasonable compensation therefor out of the assets of said estate by the court in which the estate is administered.*^ Such intermeddling must be with the property of the decedent, and if the intermeddler sets up a bona fide claim of ownership to the property, it is doubtful whether such question of title could be tried in the action above provided.^* Although a very slight degree of intermeddling will make a person liable as executor de son tort,^"' yet there are many acts, which may be done by one in charity and kindness, which will not incur for him any liability, such as caring for and preserving the property of the estate from loss or damage, feeding the stock, providing necessaries for the family, etc. The intermeddling contemplated by the statute must be an illegal one.*° The widow of a decedent dying testate, who is constituted sole legatee under the will, not having probated the will, will be held to be an exec- utor de son tort for taking possession of the property of the estate.®^ §71. Same — Statute construed. — Under the law of this state the creditor of a decedent can collect his claim against the " Burns' R. S. 1908, § 2775 ; Tippe- 39, 23 Am. Dec. 373, it was held that canoe &c. Trust Co. v. Carr, 40 Ind. where a husband left his wife, and App. 125, 78 N. E. 1043 ; McAfee v. within a year after his departure, Montgomery, 21 Ind. App. 196, 51 N. and before she had any certain E. 957. knowledge of his death, she used ** Gibson v. Cook, 62 Md. 256; the property left by him in support Clark V. Shelton, 16 Ark. 474; Eans of the family and in the payment of V. Eans, 79 Mo. 53. his debts, that she was not liable as *^ Leach v. Prebster, 35 Ind. 415. an executor de son tort to the cred- ** Brown v. Sullivan, 22 Ind. 359, itors of the husband, although the 85 Am. Dec. 421n. debts of the husband exceeded the *^ McCoy V. Payne, 68 Ind. 327. In value of his property. Brown v. Benight, 3 Blackf. (Ind.) § 71 EXECUTORS AND ADMINISTRATORS. 97 decedent's estate by and through an administration of such estate, and in no other way or manner, where his claim is not secured by a mortgage or a specific Hen on some particular property ; and without such administration he can not recover his claim from the widow, heirs, devisees or legatees, nor even from an executor de son tort.^^ An action may be brought against an executor de son tort by an administrator, executor or creditor of the estate, and when the suit is by a creditor he must sue, not only for him- self, but for all the other creditors of the decedent. ^^ Properly construed, this section of the statute does not au- thorize the creditor of a decedent to maintain a personal action or recover a personal judgment, against an executor de son tort of such decedent's estate. The liability of such an executor is not to the decedent's creditor, but to the decedent's estate and his personal representatives; and although a creditor may sue such an executor, he cannot recover a personal judgment for his debt, but can only compel such executor to account to the de- cedent's estate for the full value of such decedent's property with which he has unlawfully intermeddled, with ten per cent, added thereto as damages."'' If any one has, without an administration, ** North Western Conference v. this state by an action at law and Myers, 36 Ind. 375; Wilson v. Da- sought to charge her as an executor vis, Zl Ind. 141; Goff v. Cook, IZ de son tort. The court, in passing Ind. 351; Leonard v. Blair, 59 Ind. upon the question, said: "Supposing, 510; Allen v. Vestal, 60 Ind. 245; as the plaintiff contends, the widow Langford v. Freeman, 60 Ind. 46; to have had possession of some of McCoy V. Payne, 68 Ind. 327. the goods of the estate, that circum- " Wilson V. Davis, Zl Ind. 141 ; stance alone would not make her lia- Goff V. Cook, IZ Ind. 351; Ferguson ble to this suit, whether she be con- V. Barnes, 58 Ind. 169. sidered as holding the goods under '"McCoy V. Payne, 68 Ind. 327; the will, or as being an executrix de Goflf V. Cook, IZ Ind. 351; Ramsey v. son tort. The assets in her hands, if Flannagan, ZZ Ind. 305. In Chandler she had any, might probably be fol- V. Davidson, 6 Blackf. (Ind.) 367, lowed by the plaintiff in chancery; the facts were that a widow removed but his remedy at law, independently from another state into this state, of the express promise, would be bringing with her some of the goods against her here as an executrix, or left by her deceased husband, and a against the administrator in Caro- creditor of the husband sued her in lina." 7 — Pro. Law. 98 INDIANA PROBATE LAW. § ']2 even though he be a legatee under a will, taken possession of any of the property of a decedent, he may be sued as an executor de son tort by any unpaid creditor."^ In the absence of debts the estate of a decedent descends to his heirs and they are entitled to its possession ; and as has been here- tofore shown"" if the heirs can agree upon a distribution there is no necessity for an administration, and choses in action be- longing to such estate may be collected by the heirs entitled thereto, and they will not be considered as intermeddlers.'"'" While an executor or administrator may maintain an action against an executor de son tort of his decedent, the heirs at law, or next of kin, of such decedent cannot, simply as such, maintain the action; they must show that there are no debts and no need of administration"* in such case, otherwise they should procure the appointment of an administrator, and have a suit instituted in his name."^ In whatsoever name such suit is brought, the parties thereto are incompetent as witnesses to testify to any matters occurring in the lifetime of the deceased."'^ § 72. Same — Statute construed. — Intermeddling with the assets of the estate prior to the appointment of an executor or administrator does not disqualify such intermeddler for appoint- ment, for it has been held that one who has intermeddled may be appointed administrator, and such fact need not weigh against such appointment.®^ "^ Wilson V. Davis, Zl Ind. 141. from them is one of law. Padget v. '-See § 24. Priest, 2 T. R. 97; Williams Extrs. "'Martin v. Reed, 30 Ind. 218. 265. " Ferguson v. Barnes, 58 Ind. 169. "^ Bingham v. Crenshaw, 34 Ala. *^Babcock v. Booth, 2 Hill (N. Y.) 683. Acts even technically tortious 181, 38 Am. Dec. 578n. may be ratified by a subsequent grant '^ Larch v. Goodacre, 126 Ind. 224, of letters: Curtis v. Vernon, 3 T. R. 26 N. E. 49. The question whether 587; Hatch v. Proctor, 102 Mass. or not one is liable as executor de 351 ; Clements v. Swain, 2 N. H. 475. son tort is one of fact to be left to To an action on a judgment against the jury, and not a mere question of an executor de son tort, such person law. The facts, however, once estab- may show his subsequent appoint- lished, the conclusion to be deduced ment as administrator and a settle- S "^2 EXECUTORS AND ADMINISTRATORS. 99 An administrator sued, charging the defendant with convert- ing to his own use five hundred dollars of money, left by the decedent. The defendant answered that he had loaned the iden- tical money to the decedent, who had it on hand at the time of his death, and that his widow, at that time, took possession of the money, and representing to the defendant that she intended to take out letters of administration, requested the defendant to take back the money and deliver to her the note the decedent had given therefor. This the defendant did. Held, that the answer was insufficient, and that both the widow and the defendant were executors de son tort.''"* Where one, who has indorsed a note of the decedent, has prop- erty of the estate in his hands, which he sells, applying the pro- ceeds to the payment of the note, he will be held liable therefor as executor de son tort.'^" Under an earlier statute an action would lie against an executor de son tort, either at law or equity.^ In an action against one charged as an executor de son tort, a creditor can only show damage, by showing that the property intermeddled with was such as an administrator would be entitled to the possession and control of." ment of the estate as insolvent. 01m- ute provides that an executor de son sted V. Clark, 30 Conn. 108; Schouler tort shall be liable to the 'extent of Extrs. & Admrs., § 195. But he can- the damages' caused by his unlawful not set up his own wrong to defeat intermeddling. This is the measure the judgment. Walker v. May, 2 of the liability, for, as the statute Hill Ch. (S. Car.) 22. specifically provides . a remedy, and For acts performed before his ap- marks out the limits of the liability, pointment, for which but for his ap- there is no other remedy, and no pointment he would be liable as ex- other liability, than that created by ecutor de son tort, the administrator the statute. The person who brings is chargeable only in that capacity, the action must, therefore, show ^IcClure V. People, 19 111. App. 105. some damage, for, under this statute, "* Robinson v. Isenhower, 47 Ind. there is no liability beyond the extent 199. of the damage resulting from inter- *" Ramsey v. Flannagan, Zl Ind. meddling. A creditor can only show 305. damage by showing that the property 'Thorn v. Tyler, 3 Blackf. (Ind.) intermeddled with was such as an 504. administrator would be entitled to * In the case of Goflf v. Cook, IZ take possession and control of." Ind 351, the court says : "The stat- lOO INDIANA PROBATE LAW. § JT^ A complaint by an administrator against one for a wrongful conversion of the intestate's property is good, whether the con- version occurred before or after the granting of letters of admin- istration.^ § 73. Same — Intermeddler's rights. — A person sued as an executor de son tort to recover the value of assets of the estate which he had converted to his own use, or otherwise disposed of, is entitled to be allowed, in reduction of damages, the amount of such assets applied by him to the proper uses of the estate in the payment of debts or otherwise, provided the assets are suffi- cient to pay all the debts in full ; i f not he shall be credited only in the proportion the entire amount of the assets bears to the total amount of the indebtedness.* Such actions may be brought against an executor de son tort by the regularly appointed exe- ecutor or administrator, or by a creditor of the decedent, and the defendant in the action may, under the general denial, give evidence generally to disprove the plaintiff's right to recover.^ If the one who intermeddles afterward takes out letters of ad- ministration, he thereby cures the tortious acts, and is liable only as an ordinary administrator, and if he has received payments of money, and given receipts therefor, he is liable in his accounts as administrator for the money, and the person to whom he gave the receipt is protected by it from suit by the administrator ; and if he sells goods of the estate while he is such executor de son tort, ai)d afterward is regularly appointed administrator, he may ratify the sale, and sue the vendee for the price.'' ^ Gerard v. Jones, 78 Ind. 378. In ful intermeddling, the creditor can- such a suit, a plea of payment is not not recover an ordinary personal a proper answer. In a suit by the judgment, but the judgment for the administrator of a decedent's estate plaintiff should require the intermed- against an executor de son tort of dler to account to the court of pro- the same estate, an answer in abate- bate jurisdiction. Goff v. Cook, IZ ment, to the effect that the adminis- Ind. 351. trator had been appointed by the * Price v. Boyce, 10 Ind. App. 145, clerk, and his appointment had not 36 N. E. 766. been confirmed by the court at the '^ Reagan v. Long, 21 Ind. 264; commencement of the suit, was bad Leach v. Prebster, 35 Ind. 415. on demurrer. Collier v. Jones, 86 * Croswell Extrs. & Admrs. 140. Ind. 342. In such a suit for wrong- § 74 EXECUTORS AND ADMINISTRATORS. IQI § 74. Same — Right of widow. — A widow is not liable as an intermeddler who, in ignorance of the death of her husband, uses his property in support of herself and his children."^ But if with knowledge of her husband's death a widow retains his property in her possession, using and treating it as her own, she will be liable as an executor of her own wrong".'* The fact that the widow remains in possession of part of the personal property of her husband, after his death, does not make her an executor de son tort. This act alone would not make her liable." Where one, at the request of the widow, who takes a life estate, under the will, in all of her deceased husband's property, sells such property, or portions thereof, and applies the proceeds to the payment of the debts of the decedent, and in purchasing supplies for the widow, such person, together with the widow, will be liable as executor de son tort.^" In one case it was held that where the estate of a decedent did not exceed the amount allowed to a widow absolutely by statute, that such widow, nor her vendee, could not be held liable to cred- itors as executors de son tort for the taking and conversion of such property. ^^ § 75. Joint executors and administrators. — There may be more than one representative of a decedent's estate appointed either by the will or by the court, thus giving rise to joint ad- ministrations. From the fact, however, that one co-executor or one co-administrator possesses the power of all if he chooses to exercise it, such administrations are apt to result in divided counsel or in the strongest practically controlling the affairs of the estate. For many reasons a joint administration of an estate is not to be commended. Joint executors are those who are joined in the execution of ' Brown v. Benight, 3 Blackf. ' Chandler v. Davidson, 6 Blackf. (Ind.) 39, 23 Am. Dec. 2,72,. (Ind.) 367. * Hawkins v. Johnson, 4 Blackf. '"Leach v. Prebster, 35 Ind. 415. (Ind.) 21. "Kahn v. Tinder, 77 Ind. 147. 102 INDIANA PROBATE LAW. § 75 a will. In law, however numerous joint executors may be, they constitute but one person. ^- Formerly a distinction seems to have been made between joint executors and joint administrators.^'' But now, in respect to their rights, duties and liabilities, co-administrators stand upon the same footing as co-executors, with this difference: that their powers and duties, being defined by positive law, are not capable of any special variation, as may be those of executors.^" The trust reposed in two or more executors or administrators is in its nature joint and several, their rights are equal, their duties divisible, they are authorized to act each separately or in conjunction, and they are jointly responsible for joint acts, and each is solely responsible for his own acts and defaults in which the others do not participate ; and where one acts alone and misapplies property of the estate, or otherwise fails in any duty, he alone is responsible, and his co-executors or co-administrators are not liable therefor.^'" Joint executors or joint administrators may act independently, the act of any one, within the scope of his authority, being con- sidered the act of all. As is said: "If a man appoint several executors, they are esteemed in law but as one person, represent- ing the testator, and therefore the acts done by any one of them which relate either to the delivery, gift, sale, payment, possession or release of the testator's goods, are deemed the acts of all, for they have a joint and entire authority over the whole."^" One executor cannot prevent a co-executor from taking pos- session of the assets of the estate, nor can he take such assets from him after he has taken possession.^^ Nor is a joint executor or administrator bound to see to the application of the assets received by his co-executor or co-admin- '-' Schouler Extrs. & Admrs., § 400 ; '" Bacon's Abridg., p. 37 ; Herald v. Bouvier Law Diet; Ames v. Arm- Harper, 8 Blackf. (Ind.) 170; Long strong, 106 Mass. 15; Barry v. Lam- v. Rodman, 58 Ind. 58; Schouler bert, 98 N. Y. 300, 50 Am. Rep. 677. Extrs. & Admrs., § 400. " Hudson V. Hudson, 1 Atk. 460. '' Hall v. Carter, 8 Ga. 388 ; Wood " Schouler Extrs. & Admrs., § 404. v. Brown, 34 N. Y. 337. ''Kirby v. Turner, Hopk. Ch. (N. Y.) 309. § -- EXECUTORS AND ADMINISTRATORS. IO3 istrator; and if one such joint officer has fully and properly ad- ministered all of the assets which- have come to his hands he cannot be held accountable for the waste or mismanagement of a co-executor or co-administrator' of assets which come into his hands. It is not the duty of any one of such joint officers to see that the others do not abuse their trust. At common law they were liable generally each for his own acts and not for those of the others.'* Joint letters should not be granted where one of the parties thereto objects." In this state every person named in a will as executor must qualify and give bond to entitle him to ^letters. Failing in this he shall have no power to act as executor.'" One executor may qualify for general purposes and another for a special purpose, if such appears from the will to be the intention of the testator." And where one executor fails to qualify, or renounces his trust, letters may issue to others named in the will."" A release of a debt by one executor or administrator bmds the rest, and a payment to or a release from one extinguishes the debt, although he may misappropriate the money." Also, one joint executor or administrator can transfer notes of the decedent, or release or assign a mortgage belonging to the de- cedent."* " Kerr v Kirkpatrick. 43 N. Car. such executor. But in order to effect 137; Sanderson, Estate of, 74 Cal. this, it does not seem indispensable 199 15 Pac 753 that each executor should join in the -Brubaker's Appeal, 98 Pa. St. 21. bond. One of several executors =« Burns' R S 1908, § 2738. In the might give such a bond as would not case of Call v. Ewing, 1 Blackf. only cover his own acts, but also be (Ind.) 301, the court in considering an indemnity against any act of his the power and authority of joint ex- co-executors." ecutors, and the duty of each to ex- - Schouler Extrs. & Admrs., § 40. ecute a bond, says : '-ft seems, there- = Schouler Extrs. & Ad"irs § 41 ; fore, that bond and surety should be Bums' R. S. 1894, § 2377; Miller v. given for the due execution of the .Meetch, 8 Pa. St 417. will by each person who acts as ex- -Oilman v. Heab^ 55 Me. 20, ecutor under that will; and that no Devling v. Little, 26 Pa. bt. 50Z, person has authority to act as exec- Smith v. Everett 27 Beav- 446" utor until bond and surety be given " Dwight v. Newell, iy"„ ^33 that he will discharge his duty as Weir v. Mosher, 19 Wis. 330, Son v. I04 INDIANA PROBATE LAW. 76 As a rule where the will vests in executors the power to sell real estate, all who are acting as such executors at the date of the sale must join in the conveyance. ^^ An executor or administrator may, however, ])y his own con- duct make himself answerable for the misconduct of his co- executor or co-administrator, by conniving at his misconduct, or participating in it, or where his own negligence permits such co- executor or administrator to do such acts of waste."'' § 76. Same — Joint liability, etc. — Ordinarily each execu- tor or administrator is liable only for such portion of the estate as has come to his hands. "^ But negligence, fraud or bad faith may make one co-executor or administrator liable for the waste or mismanagement of another.-** One alone cannot confess a judgment against the estate of his decedent."'' They are liable personally and individually, no further than assets have come into their hands, unless they have done some act which the law considers as equivalent to an admission that Miner, Z1 Barb. (N. Y.) 466; George V. Baker, 3 Allen (Mass.) 326. -'* Alexander v. McMurr}-, 8 Watts (Pa.) 504; Denne v. Judge, 11 East 287; Croft v. Williams, 88 N. Y. 384; Hart V. Rust, 46 Texas 556; Han- num V. Day, 105 Mass. ZZ. ^^ Fennimore v. Fennimore, 3 N. J. Eq. 292; Whiddon v. Williams, 98 Ga. 310, 24 S. E. 437. "Call V. Ewing, 1 Blackf. (Ind.) 301; Davis v. Walford, 2 Ind. 88; Wood V. Brown, 34 N. Y. ZZ1 ; Fonte V. Horton, 36 Miss. 350; Peter v. Beverly, 10 Pet. (U. S.) 532, 9 L. ed. 522. Each of two or more executors or administrators is liable only for his own acts, and for what he receives and applies, unless he joins in the di- rection and misapplication of the as- sets. Peter v. Beverly, 10 Pet. (U. S.) 532, 9 L. ed. 522; Walker v. Walker, 88 Ky. 615, 11 S. W. 718. Or unless he has such facts before him as would convince a person of ordinary prudence that the assets in the hands of his co-executor or co- administrator are unsafe or being wasted. Walker v. Walker, 88 Ky. 615. 11 S. W. 718. They are liable personally and in- dividually no further than for the assets which came to their hands, or where they have done some act which the law considers as equivalent to an admission that the assets were in their hands and power, and culpably and negligently parted with. Hall v. Boyd, 6 Pa. St. 267. '"^ Davis V. Walford, 2 Ind. 88; Schouler Extrs. & Admrs., § 402; Irwin's Appeal, 35 Pa. St. 294; Blake V. Pegram, 109 Mass. 541 ; Holcombe V. Holcombe, 13 N. J. Eq. 413. ^ Toller Extrs. & Admrs. 360 ; Hall V. Boyd, 6 Pa. St. 267; Forsyth v. Ganson, 5 Wend. (N. Y.) 558. 76 EXECUTORS AND ADMINISTRATORS. 105 the assets were in their hands and culpably and negligently parted with.^° If an executor or administrator, by any act or default on his part, places the estate and its management in the exclusive power of his co-executor or co-administrator, he takes the risk and peril of the latter's maladministration upon himself, unless he has exercised what the courts call ordinary care and prudence.^^ And where co-executors or co-administrators unite in the mis- application of the assets of the estate, both will be held liable for the whole.^- A higher degree of care is required of executors in cases where '•Hall V. Boyd, 6 Pa. St. 267; 24 Cent. L. J. 147. '' Schouler Extrs. & Admrs., § 402; Smith V. Pettigrew, 34 N. J. Eq. 216; Head v. Bridges, 67 Ga. 227; Hays V. Hays, 3 Tenn. Ch. 88; Weigand's Appeal, 28 Pa. St. 471. A devastavit of one of two execu- tors does not charge his companion who has not actively contributed thereto, where the debts were actu- ally collected by the former, and the product of the sales of the estate, whether made by one or both, was received by him, and there was no waste except from his misapplication. Williams v. Maitland, 1 Ired. Eq. (N. Car.) 92. Since one of several executors has no power to prevent a co-executor from receiving the assets, and each has the right to receive assets and to discharge the debts due to the es- tate, the liability of each is confined to the assets he receives, unless he connives at the devastavit of his co- executor, or omits to perform some duty that is made imperative by the will, or his fiduciary position. Walk- er V. Walker, 88 Ky. 615, 11 S. W. 718; Knight v. Haynie, 74 Ala. 542; Gaultney v. Nolan, 33 Miss. 569; Shrevc v. Joyce, 36 N. J. L. 44, 13 Am. Rep. 417; Duncan v. Davison, 40 N. J. Eq. 535, 5 Atl. 93; Adair v. Brimmer, 74 N. Y. 539; Clarke v, Jenkins, 3 Rich. Eq. (S. Car.) 318; Ca.skie v. Harrison, 76 Va. 85. '^ Sutherland v. Brush, 7 Johns. Ch, (N. Y.) 17, 11 Am. Dec. 383n. And though two persons were co- executors of an estate, and though they sold property of the estate in their official character, yet, for the commission of a fraud in the sale by one of them, he is personally liable, and the other is not chargeable there- with. Heath v. Allin, 1 A. K. Marsh. (Ky.) 442. And the acceptance of improper currency upon the sale of the estate of a testator warrants a decree against the estate of the co-executor who, alone, received it. Myrick v, Adams, 4 Munf. (Va.) 366. So, where an administrator holding possession of an asset of the estate permits it to pass from him so as il- legally and injuriously to affect oth- ers, without the knowledge or assent of his co-administrator no damage or loss arising therefrom can be vis- ited upon the latter. Frazer v. Be- vill, 11 Gratt. (Va.) 9. io6 INDIANA PROBATE LAW. 76 the will gives specific directions for the management of the estate, and if such directions are not implicitly followed, each executor will be held responsible.^^ One executor or administrator who has received funds of the estate cannot exonerate himself, and shift the trust by paying such funds to his co-executor or co-administrator.^* But in such case he will not be liable only so far as the assets so paid over have been improperly applied. ^'^ Joint executors and administrators should each execute a sepa- rate bond, and if a joint bond is executed, it will be held to be the separate bond of each, and the others joining in its execution will be liable as sureties for the other.^*^ '^Weigand's Appeal, 28 Pa. St. 471; Weldy's Appeal, 102 Pa. St. 454; Wilmerding v. McKesson, 103 N. Y. 329, 8 N. E. 665 ; Deaderick v. Cantrell, 10 Yerg. (Tenn.) 263, 31 Am. Dec. 576. ^* Edmonds v. Crenshaw, 14 Pet. (U. S.) 166, 10 L. ed. 402; Langford •V. Gascoyne, 11 Ves. Jr. 333; Adair V. Brimmer, 74 N. Y. 539; Knight v. Haynie, 74 Ala. 542. ^ Shipbrook v. Hinchinbrook, 11 Ves. Jr. 252; Williams v. Nixon, 2 Beav. 472. =' State V. Wyant, 67 Ind. 25; Moore v. State, 49 Ind. 558; Prich- ard V. State, 34 Ind. 137; Braxton v. State, 25 Ind. 82. Whether a bond given by co-exec- utors or co-administrators has the .effect to make each liable for the acts of the other, depends upon the in- tention of the parties, to be gathered from the instrument itself. Little v. Knox, 15 Ala. 576, 50 Am. Dec. 145. Executors jointly and severally ap- pointed by a will, and jointly ap- pointed by the probate court, who ac- •cept the trust and give a joint bond, thereby assume a joint as well as a ■several liability. Probate Court v. May, 52 Vt. 182; Marsh v. Harring- ton, 18 Vt. 150. A joint bond given by co-adminis- trators faithfully to administer the estate binds each not only for him- self, but that his associate shall faith- fully perform his duty. Jeffries v. Lawson, 39 Miss. 791; Clarke v. State, 6 Gill & J. (Md.) 288, 26 Am. Dec. 576. But neither of two co-executors or co-administrators, who give several and not joint bonds, is liable for losses caused exclusively by the de- fault of the other. McKim v. Aul- bach, 130 Mass. 481, 39 Am. Rep. 470. And executors and administrators required to give bond, not desiring to be responsible each for the acts of the others, should, where permitted by law, each execute a separate bond with separate sureties, conditioned for the faithful performance by each of his duties. Clarke v. State, 6 Gill & J. (Md.) 288, 26 Am. Dec. 576; Overton v. Woodson, 17 Mo. 453; Eckert v. Myers, 45 Ohio St. 525. 15 N. E. 862. And a bond by which A and B, ex- ecutors, and C and D as sureties for § 77 EXECUTORS AND ADMINISTRATORS. IO7 Co-executors or administrators need not join in signing a re- ceipt, but if they do it will be presumed that both actually re- ceived the assets of the estate receipted for. This presumption, however, may be rebutted." The same rule will also apply to the filing of joint accounts. Such account is prima facie evidence that the assets of the estate jointly reported were in the actual custody of both.'^ Nor can joint executors or administrators escape liability by making an arrangement between themselves to divide the admin- istration, each l)eing responsible only for what he receives.^^ In this state where one joint executor or administrator, upon the failure of the others to do so, makes and files the inventory required by statute, it will bar the others from afterward acting in the administration of the estate with him without his consent, or leave of court.*" Where executors unite in selecting an agent they will become jointly liable for the misconduct of such agent." And where joint executors or administrators appoint one of their number acting executor and turn over to him the sole management of the estate, they will be held liable for his acts." Where a joint executor or administrator dies his estate will be liable for whatever he was liable for at the time of his death."' § 77. Same— Actions by and against.— The rule at com- mon law was that all executors who were named in the will must join in bringing an action. But under our statutes, as only those who have qualified and given bond can be named in the letters, A, and E as surety for B, are held Ves. 570; Glacius v. Fogel, 88 N. Y. and firmlv bound, does not bind the 434; Young's Appeal, 99 Pa. St. 74. sureties jointly for both executors, ^Weldy's Appeal, 102 Pa. St. 454; but severally for each. Elliott v. Wilson v. Lineberger, 94 N. Car. 641, Mayfield, 4 Ala. 417. 55 Am. Rep. 628; Viner's Abndg., p. " Schouler Extrs. & Admrs., § 402 ; 362. McKim V. Aulbach, 130 Mass. 481, 39 *» Burns' R. S. 1908, § 2784. Am. Rep. 470; Monell v. Monell, 5 " Earle v. Earle, 93 N. Y. 104; Johns. Ch. (X. Y.) 283, 9 Am. Dec. Cowell v. Gatcombe, 27 Beav. 568. 293 *^Lees v. Sanderson, 4 Sim. 28. ''Suydam v. Bastedo, 40 N. J. Eq. « Prichard v. State, 34 Ind. 137. 433, 2 Atl. 808; Murvell v. Cox, 2 I08 INDIANA PROBATE LAW. § ']'] and only those so named have any authority to act, they alone are authorized to sue." But where one executor contracts on his own account, he alone has a right to sue upon such contract, even though the money recovered will be assets of the estate.*^ Where an action is brought against joint executors or admin- istrators in their respresentative capacity service should be had upon all/" But in such an action the plaintiff may have judg- ment against such of them as he proves to be chargeable, though he fails to show that all are liable.'*^ As joint executors and administrators in law constitute but one person, they cannot, at law, unless authorized by statute, sue or be sued by one another.*^ But in equity such suits may be maintained. A court of equity will not, however, interfere unless justice seems to imperatively require it.*^ The proper course to pursue, though, where one executor be- haves improperly or becomes unfit to discharge the duties of his trust, is to procure his removal.^" His refusal to permit his co-executors or administrators to in- spect papers belonging to the estate which are in his possession, is better ground for his removal, than for an action against him to compel their surrender. '^^ Those who have undertaken the administration can be relieved of liability only by administering the assets of the estate them- selves, or by giving, by their resignation, such assets into the care of the court having probate jurisdiction.^^ " Schouler Extrs. & Admrs., § 103 ; Beach v. Norton, 9 Conn. 181 ; Call V. Ewing, 1 Blackf. (Ind.) 301; Storms v. Quackenbush, 34 N. J. Eq. Duncan v. Watson, 28 Miss. 187; 201; McGregor v. McGregor, 35 N. Smith V. Smith, 11 N. H. 459. Y. 218; Stiver v. Stiver, 8 Ohio 217; '' Williams Extrs., § 1868. Bowen v. Richardson, 133 Mass. 293. '"Owen V. Brown, 2 Ala. 126 Barnes v. Jarnagin, 12 S. & M (Miss.) 108. "Judson V. Gibbons, 5 Wend. (N Y.) 224. ** Schouler Extrs. & Admrs., § 403 : Martin v. Martin, 13 Mo. 36. '" Schouler Extrs. & Admrs., § 403 ; '"Hesson v. Hesson, 14 Md. 8; Schouler Extrs. & Admrs., § 403. '"'^ Chew's Est., 2 Pars. Eq. Cases 153. '-McNeal v. Holbrook, 25 Pa. St. 189; Horton v. Brocklehurst, 29 Beav. 503. § 78 EXECUTORS AND ADMINISTRATORS. IO9 § 78. Administrator in case of wrongful death. — Where an administrator is appointed for the sole purpose of bringing suit for damages under the statute against one by whose wrongful act death has been caused, and where such right of action is the only asset of the estate of such decedent, the administration, though general in its scope, is yet limited in the powers conferred and the duties imposed upon such administrator. By the ternis of § 285, Burns' R. S. 1908, where the death of one is caused by the wrongful act or omission of another, the per- sonal representative of the dead person may maintain an action for damages against the wrongdoer, etc. The words "personal representative" used in this statute have been held to include an administrator, and that an administrator may be appointed for the sole purpose of prosecuting such an action." But in such cases the appointment is not for the purpose of making assets for the estate of the deceased person. The damages recovered are for the benefit of those supposed in some way to be dependent on the deceased and enure to the exclusive benefit of the widow and children, if any, of such decedent, or to his next of kin. In such cases the administrator does not represent the creditors of the estate, nor is the fund, if any, recovered by him subject to the demands of creditors, but belongs exclusively to the classes above named. ^* While strictly speaking the right of action given by this statute is no part of the assets of the estate proper, yet it is sufficient to justify the appointment of an administrator with these limited powers; more properly speaking not so much an administrator as a trustee for those entitled to the damages arising from such action. ^^ The administrator of such deceased person's estate is the only "''Toledo &c. R. Co. v. Reeves. 8 Ind. Ill, 21 N. E. 472, 12 Am. St. Ind. App. 667, 35 N. E. 199; Ex parte 371n. Jenkins, 25 Ind. App. 532, 58 N. E. '" Lake Erie &c. R. Co. v. Charman, 560, 81 Am. St. 114. 161 Ind. 95, 67 N. E. 923; Memphis ^ Hilliker v. Citizens' Street R. &c. Packet Co. v. Pikey, 142 Ind. 304, Co., 152 Ind. 86, 52 N. E. 607; Louis- 40 N. E. 527. ville &c. R. Co. V. Goodykoontz, 119 no INDIANA PROBATE LAW. § yS person competent nnder this statute to prosecute the action for damages therein provided; and it makes no difference if such administrator is the general administrator of the estate, or one appointed to prosecute the action. The right is in either.'^" This statute not only creates a new cause of action unknown to the common law, but it designates the person in whose name or right the action can be maintained, and that person is the personal rep- resentative of the deceased, who is understood to be the adminis- trator of the deceased person's estate. The statute having named the person who may prosecute such action, it excludes all others, and therefore it cannot be maintained by any other person."*^ It being said in one case, "but one person is designated by the statute as having a right to sue. That person is neither the father, mother, nor wife of the decedent, but the personal repre- sentative. The person to whom the right to sue is given by stat- ute is the only person who can sue wherever the right is sought to be enforced.""'^ The law is well settled that this statute was intended to provide "' Lake Erie &c. R. Co. v. Charman, tlie remedy, it is not governed by the 161 Ind. 95, 67 N. E. 923. law of the forum which has no ex- '"'' Baltimore &c. R. Co. v. Gillard, traterritorial force. A rule of law 3^4 Ind. App. 339, 71 N. E. 58. which is clearly established by the '** Fabel v. Cleveland &c. R. Co., 30 authorities is that where a right of Ind. App. 268, 65 N. E. 929. action for damages for death is given In this case the court say: "As ap- by statute of one state, and it is pro- pellant has planted his action on the vided by such statute that the action Ohio statute, he must recover upon must be brought in the name of a that, or not at all. That statute gives party designated by the statute, the a new cause of action not recognized right may be enforced in another by the common law, and places the state having a similar statute, but right to prosecute such action in the the action cannot be brought in an- personal representative of the de- other state by any other party than ceased, and not in the father or any the one to whom the right is given one else. The question for decision by the statute on which it is based, is simply this : The right of action To state the rule correctly, the action given by the statute, being in deroga- must be instituted by and in the tion of the common law, must such name of the party designated by the action be prosecuted by the person statute of the state where the cause designated by the statute, or can it of action arose, even when such ac- he prosecuted by some one else? If tion is brought in another state it affects the right, and not merely whose statute provides that such ac- § y8 EXECUTORS AND ADMINISTRATORS. Ill a remedy not only for citizens of this state, but for citizens of other states while passing through or residing in this state, and for this reason foreign administrators are permitted to maintain actions under this statute ; the fund recovered though, when re- covered must be held by the personal representative, whether he be domestic or foreign, as the trustee of an express trust for the benefit of those designated in the statute.^" tion shall be brought by some other N. E. 527; Jeffersonville &c. R. Co. v. party." Hendricks, 41 Ind. 48; Dennick v. "•Pennsylvania Co. v. Coyes, 163 Railroad Co., 103 U. S. 11, 26 L. ed. Ind. 631, 72 N. E. 875; Memphis &c. 439. Packet Co. v. Pikcy, 142 Ind. 304, 40 CHAPTER V. FOREIGN EXECUTORS AND ADMINISTRATORS. § 79. Defining foreign administration. § 84. Allowance of claim in foreign 80. Rights of foreign executors. jurisdiction. 81. Right to bring suits. 85. Same — Effect of on real estate. 82. Same subject. 86. Right to sell real estate. 83. Right and title to property. 87. Same continued. 88. Same — Bond required. § 79. Defining foreign administration, — The term foreign administration means an administration originating in some other jurisdiction than that of this state, and the phrase foreign execu- tor or administrator has reference only to the foreign origin of the representative capacity and not to the non-residence of the individual holding the office, not the residence but the creation of the official character by force of a law foreign to our own is the criterion. In the absence of any statute upon the subject a foreign execu- tor or administrator has no power or authority beyond the juris- diction of the state wherein his appointment was made. His representative character l3eing dependent upon the laws of that state, it is only in such state that such laws have any force and effect. The jurisdiction of each state of this Union is sovereign and independent in granting letters of administration, as much so as that of any two foreign states. The grant, when made, invests the administrator under the authority of that state with the pro- prietorship of the effects of the decedent within that state, but, having no jurisdiction beyond its own limits, it can confer no authority or right of property upon him outside of those limits.^ 'Stacy V. Thrasher, 6 How. (U. 10 L. R. A. 861; Smith v. Smith, 174 S.) 44, 12 L. ed. 337; McGarvey v. 111. 52, 50 N. E. 1083, 43 L. R. A. Darnall, 134 111. 367, 25 N. E. 1005, 403 ; Braithwaite v. HarA^ey, 14 Mont. 112 § 79 FOREIGN EXECUTORS AXD ADMINISTRATORS. II3 As a rule the administration of the assets of an estate is gov- erned by the law where the personal property is situated, and the administrator acts as to the creditors of a decedent without re- gard to the domicile of such creditors.- But no executor or administrator as such has any authority out of the state in which he has qualified.^ And if a foreign state acknowledges the title and authority of an executor or adminis- trator appointed in another jurisdiction it is done ex comitate.'* Foreign administrators are independent of each other, no con- nection exists between them, each represents the decedent by an authority coextensive only with the state in which his appoint- ment is made, and each is as much a stranger to the other in re- spect of their appointment, powers, estates, duties and liabilities as are administrators of different decedents. They derive their authority from different sovereignties and over different property, the authority of each being paramount to the other, and each is accountable to the authority from whom he receives his appoint- ment. In this connection one author writes: "It follows from this 208, 36 Pac. 38, 43 Am. St. 625, 27 taking exclusive possession of and L. R. A. lOln ; Johnson v. Powers, occupying the same, neither is he, in- 139 U. S. 156, 35 L. ed. 112, 11 Sup. dividually or as administrator, liable Ct. 525 : Slauter v. Chenowith, 7 Ind. for rents and profits which accrue on 211. account of such occupancy, and a If a creditor wishes a suit to be judgment of the court against him brought in any foreign country in or- therefor as administrator is errone- der to reach the effects of a deceased ous. Fairchild v. Hagel, 54 Ark. 61, testator or intestate situated therein, 14 S. W. 1102. letters of administration must be 'Campbell v. Sheldon, 13 Pick, taken out in due form according to (Mass.) 8. the local law, as the executor or ad- * Story Conf. Laws, § 512. ministrator appointed in • another Where a receiver or administrator. country is not suable there and has or other custodian of an estate, is ap- no positive right to or authority over pointed by the courts of one state, the those assets, neither is he responsible courts of that state reserve to them- therefor. Baker v. Smith, 3 Met. selves full and exclusive jurisdiction (Ky.) 264. over the assets of the estate within = Jones V. Drewry, 12 Ala. 311. the limits of the state. Reynolds v. A foreign administrator has no Stockton, 140 U. S. 254, 35 L. ed. right to the possession of land and is 464, 11 Sup. Ct. ITh. not liable in his fiduciary capacity for &— Pro. L.\w. 114 INDIANA PROBATE LAW. § 79 doctrine that where a person dying leaves property in several dif- ferent jurisdictions, the legal representatives of such person must derive their authority from each of as many sovereignties as may have jurisdiction over the property so left, because the territorial element of the law, or rather of the sovereignty from which the law emanates, permits no other sovereignty to exercise authority over it, and each therefore must itself create the legal ownership necessary in its devolution."^ And while the law of the domicile of the decedent governs the descent and transmission of personal property to heirs and lega- tees, it follows from the exclusive authority of one nation over the property and persons within its jurisdiction, that the mode of administration, including the method of paying debts, their right to priority of payment, and the marshalling of assets for this purf)ose, is governed altogether by the law of the country in which the executor or administrator acts, entirely independent of that in the domicile of the decedent, or in any other jurisdiction." But where the legal title to the personal property of a decedent has once become fully vested in the personal representative of such decedent such representative may remove such property or follow it into a foreign jurisdiction without forfeiting or losing such ownership. The title once duly acquired by the law of the place where it is situated becomes fixed and will be deemed valid and will be respected in every other country.'^ The administration in each state is wholly independent, so that 'Woerner's Am. Law Admin., Kennedy v. Kennedy, 8 Ala. 391; § 158. McGehee v. Polk, 24 Ga. 406. 'Woerner's Am. Law Admin., 'Story Conf. Laws, § 516; Woer- § 166; Story Conf. Laws, §§ 524, 525; ner Am. Law Admin., § 159; Brown Smith V. Union Bank, 5 Pet. (U. S.) v. Knapp, 79 N. Y. 136; Collins v. 518, 8 L. ed. 212, the court saying: Bankhead, 1 Strob. (S. Car.) 25. It "Every sovereign has his own code of has been held that where a negoti- administration, varying to infinity as able note matures after the testator's to the order of paying debts; and al- death it becomes vested in the local most without an exception, asserting executor, who may sue upon it in the right to be himself first paid out another state without taking out let- of the assets. And the obligation in ters there. Giddings v. Green, 48 Fed. the administrator to conform to such 489. laws, is very generally enforced.' § 80 FOREIGN EXECUTORS AND ADMINISTRATORS. II 5 an executor or administrator in one state is not bound to inven- tory, or in any manner account for assets of his decedent in the possession of an executor or administrator in another state.® § 80. Rights of foreign executors. — Where local laws ex- ist in this state in regard to executors and administrators ap- pointed in another state, such laws must be substantially complied with before such foreign executor or administrator will be recog- nized in this state. The following statutes in this state, strictly construed, apply only to executors or trustees appointed in some will from a for- eign jurisdiction, or an administrator with the will annexed of such foreign will. The statutes read as follows : "When a will is executed in another state or country, and ad- mitted to record in this state, the executor or administrator with the will annexed, and any trustee appointed by such will or by any court of this state to perfonn any duty or to carry into effect any trust created by such will, shall have all the rights, powers and authority, and shall be subject to the same liabilities respect- ing their respective duties and trusts, as executors, administrators with the will annexed, and trustees under wills duly executed and admitted to probate in this state."" "The courts of this state shall, in all such cases, have the same iurisdiction and powers over the appointment, filling vacancies, requiring sureties, and enforcing, directing and restraining the ' Sherman v. Page, 85 N. Y. 123. given by Call has any reference to •Burns' R. S. 1908, § 2814; Lucas the conduct of Hart as executor. If V. Tucker, 17 Ind. 41. In the case it has not, Hart cannot be considered of Call V. Ewing, 1 Blackf. (Ind.) as an executor under our act of as- 301, the court having under consider- sembly, nor can he be joined in an ation the question as to the rights action as executor." and powers of a foreign executor In Lucas v. Tucker, 17 Ind. 41, the who had not complied with the laws court says: "That an executor de- of this state in reference to the exe- rives his power to act as such, m ref- cution of a bond, said: "Hart re- erence to the transfer of immovable sided in Kentucky; he has not proved property, from a compliance with the the will, nor intimated any intention law of the place where he attempts of acting as an executor under it ; so to operate under the will, and not that we cannot suppose the bond from the will alone.' Il6 INDIANA PROBATE LAW. § 8 1 performance and execution of the duties and trusts of such exec- utors, administrators with the will annexed, and trustees, as are given to such courts respecting the same matters arising un- der wills duly executed and admitted to probate in this state. "^"^ A testator may appoint different executors in different coun- tries in which his proj^erty is situated, or different executors as to different portions of his estate in the same countr\'.^^ A person claiming under a will proved in one state cannot in- termeddle with or sue for personal property of a testator in an- other state, unless the will also be pro\ed in that state, or unless he be permitted to do so by some law of that state. ^^ The provisions of such statutes as these do not exclude or pre- vent the grant of letters to some one within the jurisdiction of this state. The rights given are but cumulative and not exclu- sive." § 81. Right to bring suit. — In the absence of some statute granting authority, the power of an executor or administrator is circumscribed by the boundari ;s of the state in which he receives his letters, and he cannot bring an action nor collect a claim in another state without first taking out ancillary letters of adminis- tration.^* But in this state by statute, under certain restrictions, " Burns' R. S. 1908, § 2815. (Tenn.) 86; Brodie v. Bickley, 2 "Hunter v. Bryson, 5 Gill & J. Rawle (Pa.) 431, (Md.) 483, 25 Am. Dec. 313. And if sued in his representative " Lucas V. Tucker, ''i? Ind. 41. capacity the fact of his appearing and The power of an executor is given pleading will not alter the rule, his by the will of the testator but his authority being limited, and when ex- right to appear in any court and the ceeded his actions have no binding^ validity of his acts in that capacity effect. Judy v. Kelley, 11 111. 211, 50 depend wholly upon the probation of Am. Dec. 455. the will by the prerogative court, " Epping v. Robinson, 21 Fla. 36. within the limits of that local juris- " Stewart v. O'Donnell 2 Dem. (X. diction in which he claims the power Y.) 17. to act. Riley v. Riley, 3 Day (Conn.) An administratrix, appointed in 74, 3 Am. Dec. 260. Colorado, of an intestate dying there, He is onlj' accountable to the legal whose domicil was in Illinois, where tribunals of the state where appointed, his son also took out letters of ad- Fay V. Haven, 3 Met. (Mass.) 109; ministration, has no title upon which Vermilj'a v. Beatty, 6 Barb. (N. Y.) she can maintain suit in Kansas upon 429; Sparks v. White, 7 Humph, notes and mortgages against parties § 8l FOREIGN EXECUTORS AND ADMINISTRATORS. II 7 a foreign executor or administrator may maintain a suit in this state without taking out ancillary letters. As a rule an executor or administrator cannot, simply by virtue of letters testamentary or of administration granted in one state, maintain an action in any other state. ^^ Such authority, when it exists, does not exist as a matter of right, but by statute. The statute in this state reads : "A non-resident executor or adminis- trator, duly appointed in any other state or country, may com- mence and prosecute any suit in any court of this state, in his capacity of executor or administrator, in like manner and under like restrictions as a resident; and a copy of his letters, duly authenticated in like manner as provided in this act,^^ being pro- duced and filed in the court in which such suit is brought, shall be sufficient evidence of his due appointment: Provided, That he shall give bond for costs under the laws regulating the main- taining of suits by non-resident citizens."" Under this section of the statute a foreign executor or admin- istrator, as well as a resident, may sue, and, unless his authority be denied under oath, his capacity and right to sue are admitted, and no proof of his appointment need be offered in evidence.^^ dumiciled there, where the mortgaged Y. Ch. L. ed. 139, 32 Am. Dec. 627n; lands also are situated, and where no \'ermi!ya v. Bcatty, 6 Barb. (N. Y.) letters have been issued, although 429. such notes and mortgages were in in- Nor can he be substituted in the testate's possession at his death, and place of the deceased in an action have come into her possession, and therein, pending against him at the have not been in the possession of time of his death. The rule is other- the administrator in Illinois. Moore wise where the executor has brought V Jordan, 36 Kan. 271, 13 Pac. 337, assets of the estate into this state. 59 Am. Rep. 550. In re Webb, 11 Hun (N. Y.) 124; ^R. S. 1824, p. 324; Naylor v. Lyman v. Parsons, 28 Barb. (N. Y.) Moody, 2 Blackf. (Ind.) 247; Nay- 564; Metcalf v. Clark, 41 Barb. (N. lor V. Moody, 3 Blackf. (Ind.) 92. Y.) 45; Pugh v. Jones, 6 Leigh. (Va.) A foreign executor cannot main- 299; Smith v. Webb, 1 Barb. (N. Y.) tain an action here by virtue of his 230. appointment abroad. Metcalf v. Clark, '" Burns' R. S. 1908, § 2758. 41 Barb. (N. Y.) 45. See Smith v. "Burns' R. S. 1908, § 2816. Webb, 1 Barb. (N. Y.) 230; Slatter " I^Iatlock v. Powell, 14 Ind. 378. V. Carroll, 2 Sandf. Ch. (N. Y.) 573, In Nolte v. Libbert, 34 Ind. 163, the 7 N. Y. Ch. L. ed. 708; McNamara court, in considering the proper mode V. Dwyer, 7 Paige (N. Y.) 239, 4 N. of raising the question as to the ca- ii8 INDIANA PROBATE LAW. 8l An earlier statute required the letters to be entered of record in some circuit court of this state, prior to the commencement of an action by a foreign executor or administrator.^* Such letters, or authenticated copies thereof, now need only be produced and filed in the court in which the suit is brought. The time when such authenticated copies of the letters should be filed is not so ma- terial, as they are not to be considered as a part of the pleadings, but only as evidence of the appointment of such executor or ad- ministrator."" pacity of an executor or administra- tor to sue, said: "But where the action is brought by an executor or administrator, his right to sue can only be called in question by a plea in abatement sworn to." See, also, Kelley v. Love, 35 Ind. 106. In Barnett v. Vanmeter, 7 Ind. App. 45, 33 N. E. 666, the court, in considering the right of an adminis- trator to sue and the allegations nec- essary, says : "In case of suit by him, he need only aver that he is the ad- ministrator, and need not make prof- ert of his letters, nor can his right to sue be questioned unless the defend- ant files a plea under oath denying such right, and such a pleading is in abatement and not in bar." "^R. S. 1824, p. 324; Naylor v. Moody, 2 Blackf. (Ind.) 247; Naylor V. Moody, 3 Blackf. (Ind.) 92. ™ Upton V. Adams, 27 Ind. 432; Jefifersonville R. Co. v. Hendricks, 26 Ind. 228. In the case of Jelly v. Ste- vens, 4 Ind. 510, the court, in consid- ering the question as to the allega- tions in the pleadings to the filing of the letters of a foreign administrator when he sues as such, said: "We think it" (the declaration) "need not state that the letters of administra- tion were produced and filed, etc. The statute, it seems to us, was in- tended to affect only the rules of ev- idence in such cases, and not those of pleading. Had the appellee's ap- pointment as administrator been con- tested by plea to the action, then the letters would not have been evidence of that fact without being produced and filed in the court in which the suit was brought. But the act, in our opinion, does not require that such production and filing should appear in the declaration." The court, in the case of the Jef- fersonville R. Co. v. Hendricks, 26 Ind. 228, in construing the section granting the right of foreign execu- tors and administrators to sue in this state, said: "The last clause of the section relates to the evidence of the right to sue as such executor or ad- ministrator, when that right is prop- erly denied or put in issue, and does not require that a duly authenticated copy of the letters should be filed in the clerk's office of the county, before the suit is commenced." And in the case of Upton v. Ad- ams, 27 Ind. 432, the same question being under consideration, the court said: "The right of a foreign execu- tor or administrator to sue is not dependent upon his filing here a copy of his letters. The statute relied on by the appellant does not require such filing at all. It merely declares, as a rule of evidence, in case his au- § 82 FOREIGN EXECUTORS AND ADMINISTRATORS. II9 § 82. Same subject. — Suits brought by foreign executors or administrators, under this statute, will be governed in all re- spects by the same rules of pleading and procedure as are actions begun by resident administrators.-^ While an administrator of another state cannot be sued in his representative capacity, outside the jurisdiction to which he owes his appointment, yet if he comes into the jurisdiction of the courts of this state by a compliance with our statutes, he submits himself sufficiently to this jurisdiction as to be liable to a suit in his representative capacity, the same as are resident executors and administrators. There is no privity between different administrations, and a judgment against an administrator in one jurisdiction does not estop one in another. In the case of different administrations, each administrator is so far independent of the others that prop- erty reclaimed under one cannot be sued for under another, though it may at any time be within the jurisdiction of the latter." A foreign administrator may be proceeded against in this state by attachment, but if the cause of action is against him in his representative capacity, a personal judgment should not be ren- dered against him.-^ It has been held that where there are no creditors of an in- testate, nor any person entitled as heir or distributee at the thority shall come in question, that a executor took out letters testamen- copy of the letters" (produced and tary in both countries, in a suit in filed in the court) "shall be sufficient England against the executor by the evidence of his appointment. We do administrator of a deceased claimant, not perceive that this language is the parties were restricted to the lim- open to construction." its of the country to which their let- ^ Collins V. Ayers, 13 111. 358. ters extended. Under his English "Story Confl. Laws, § 518; Hoi- letters the executor could do no act comb V. Phelps, 16 Conn. 127 ; Brodie as executor beyond England, nor V. Bickley, 2 Rawle (Pa.) 431; Mer- could he voluntarily transfer the rill V. New England &c. Ins. Co., 103 Pennsylvania assets to the foreign Mass. 245, 4 Am. Rep. 548; Price v. jurisdiction to be distributed there. Mace, 47 Wis. 23, 1 N. W. 336. Aspden v. Nixon, 4 How. (U. S.) Where a person domiciled in Eng- 467, 11 L. ed. 1059. land died, leaving property both in ^ Lewis v. Reed, 11 Ind. 239. England and Pennsylvania, and the I20 INDIANA PROBATE LAW. § 83 domicile of the debtor, a voluntary payment by such debtor to a foreign administrator was good as against the claim of an admin- istrator duly appointed at the place of the debtor's domicile."* But as a rule foreign administrators cannot release or control simple contract debts in the jurisdiction of the primary adminis- tration. "'^ Where no administration has been taken out in a foreign juris- diction, property of the decedent coming from such foreign jurisdiction into the hands of the domestic administrator makes him responsible therefor.-" Such property immediately vests in the domestic administrator.-^ The statute in this state gives a right of action for the death of a person caused by the wrongful act or omission of another, and the right accrues on behalf of citizens of other states or countries whose death may be so caused while passing through or residing in this state; and it has been held that a foreign executor or administrator may maintain an action under this statute and the damages recovered will be held in trust for the widow and chil- dren, or next of kin of the deceased."^ § 83. Right and title to property. — In regard to the title of executors and administrators to the property of a decedent, de- rived from a grant of administration in the country where the ■*Wilkins v. Ellett, 9 Wall. (U. S.) entire personal estate, wherever situ- 740, 19 L. ed. 586. ate ; and the title so derived will be An executor or administrator, un- recognized, by comity, by the courts der letters granted at the domicile of of another state, unless creditors re- the deceased, may receive and dis- siding in the latter state have pre- charge a debt voluntarily paid to him vionsly intervened and taken out let- in another jurisdiction, may transfer ters for their protection. Election of negotiable choses in action so as to Directors of Cape May &c. Nav. Co., enable the transferee to sue in his 51 N. J. L. 78, 16 Atl. 191. own name in the courts of another ^Chapman v. Fish, 6 Hill (N. Y.) state, may receive dividends on, and 554. sell and transfer, stock in a corpora- "'Wells v. Miller, 45 111. 382. tion of another state. These acts he ^ Collins v. Bankhead, 1 Strobh. may do for the reason that letters (S. Car.) 25. granted at the domicile of the de- "* Jeffersonville R. Co. v. Hen- ceased by operation of law vest in dricks, 26 Ind. 228; Jeffersonville &c. the e.xecutor or administrator the R. Co. v. Hendricks, 41 Ind. 48. § 83 FOREIGN EXECUTORS AXD ADMINISTRATORS. 121 deceased resided, it is to be considered that such title cannot, de jure, extend, as a matter of right, beyond the territory of the government which grants it."^ But inasmuch as our statute authorizes a non-resident executor or administrator to sue in the courts of this state it would seem that bringing evidences of debt here from the state or country in which administration was granted could not work a forfeiture of the title of such executor or administrator; they are prohibited, however, from removing assets of the estate which may come into their possession from the jurisdiction of the courts of this state until all the just claims of resident creditors, legatees and distributees are fully satisfied.^" But if such title as to personal property is acknowledged in a foreign representative it is so acknowledged only from comity, and comity should always yield to the local obligation of protect- ing domestic creditors and domestic rights as against foreign rights. ^^ The result follows from the doctrine of comity that executors or administrators duly appointed in another state have a right to take charge of and control personal property of their "Story's Confl. Laws, § 312. ence to its institutions and the in- Every grant of administration is terests of its own citizens. Greer v. strictly confined in its authority and Ferguson, 56 Ark. 324, 19 S. W. 966 j^ operation to the limits of the terri- following Vaughan v. Northup, 15 tory of the government which grants Pet. (U. S.) 1, 10 L. ed. 639. it and does not de jure extend to "^Thomasson v. Brown, 43 Ind. other countries. Vaughan v. Northup, 203. 15 Pet. (U. S.) 1, 10 L. ed. 639; "Moore v. Fields, 42 Pa. 467; Greer v. Ferguson, 56 Ark. 324, 19 S. Schoulcr E.xtrs. & Admrs. 315. W. 966; Taylor v. Barron, 35 N. H. The courts will assume jurisdiction 484; Leonard v. Putnam, 51 N. H. over such administrator, coming 247, 12 Am. Rep. 106. within the jurisdiction of the court, Therefore his authority cannot be with property of the deceased which more extensive than that of the gov- he wrongfully applies to his own use. ernment from which he receives it. Brown v. Brown, 4 Edw. Ch. (N. Stacy V. Thrasher, 6 How. (U. S.) Y.) 343, 6 L. ed. 899; Brown v. 44, 12 L. ed. Z2>7. Brown, 1 Barb. Ch. (N. Y.) 189. 5 L. Whatever operation is allowed to ed. 349; Black v. Woodman, 5 Redf. it bevond the original territory of its (N. Y.) 363; Marshall v. Bresler, 1 grant, is a mere matter of comity How. Pr. (N. S.) (N. Y.) 217; Mc- which everv nation is at liberty to Namara v. Dwyer, 7 Paige (X. Y.) yield to or withhold, according to its 239, 4 L ed. 139, 32 Am. Dec. 627n. own policy and pleasure with refer- 122 INDIANA PROBATE LAW. § 84 decedents situated in this state when there is no conflicting grant of letters here.^" The assets of an estate in the hands of an administrator or executor here will not be remitted to a foreign representative at the place of the decedent's domicile where there are claimants for such assets in this jurisdiction. Such effects are to be distrib- uted among the creditors of the decedent according to the laws of the state of the administration, and not according to the laws of the decedent's domicile.^^ But the distribution to heirs and distributees of the surplus of the estate remaining after payment of debts is regulated by the law of the place of the decedent's domicile at the time of his death. ^* But it is not obligatory upon courts to transfer assets to the domicile for distribution.^" § 84. Allowance of claim in foreign jurisdiction. — What is the effect of the allowance of a claim by adjudication of a court of foreign jurisdiction upon assets of a decedent in this state? That such a judgment is not binding or conclusive except as to assets of the estate wherein such allowance is made, is supported by the weight of authority. In one case the court says : "A judgment recovered against the administrator of a deceased per- son in one state is no evidence of debt in a subsequent suit by the same plaintiff in another state, either against an administrator, whether the same or a different person appointed there, or against any other person having assets of the deceased."^" The laws and courts of a state can only affect persons and things within their jurisdiction. The judgment in such a case is against the person of the administrator that he shall pay the '^ Brown v. Brown, 1 Barb. Ch. (N. ^ Woerner's Am. Law Admin., § 167. Y.) 189; Black V. Woodman, 5 Redf. "Johnson v. Powers, 139 U. S. (N. Y.) 363. 156, 35 L. ed. 112; Aspden v. Nixon, "Smith V. Union Bank, 5 Pet. (U. 4 How. (U. S.) 467, 11 L. ed. 1059; S.) 518, 8 L. ed. 212; Borer v. Chap- McLean v. Meek, 18 How. (U. S.) man, 119 U. S. 587, 30 L. ed. 532. 16, 15 L. ed. 277; Braithwaite v. »* Hall V. Pegram, 85 Ala. 522, S Harvey, 14 Mont. 208, 36 Pac. 38, 43 So. 209, 6 So. 612 ; Hutton v. Hutton, Am. St. 625, 27 L. R. A. lOln ; Low 40 N. J. Eq. 461, 2 Atl. 280; Tucker v. Bartlett, 8 Allen (Mass.) 259. V. Condy, 10 Rich. Eq. (S. Car.) 12. § 85 FOREIGN EXECUTORS AND ADMINISTRATORS. 12 T, debt of his decedent out of the funds committed to his care; the judgment being in personam and not ni rem. Consequently, both as to the administrator and the property confided to him, a judg- ment in another state is res inter aUos acta. It cannot even be prima facie evidence of a debt." It may therefore be taken as settled doctrine that if letters of administration are granted in different states to different persons, or even to the same person, there is no privity between the dif- ferent administrations in respect to the estate coming to each administrator, in so far, at least, as to render such assets liable for a claim allowed against the administrator of the same estate in another state, and that therefore a judgment against the ad- ministrator in one state is not competent testimony to show a right of action either against a domiciliary or ancillary admims- trator in another state, or to affect assets in such other state.^« §85. Same— Effect of on real estate.— While ordinarily there is no privity between two administrators in different states, '^ Stacv V. Thrasher, 6 How. (U. ^ Story Conf. La.-s § 522; Freem. S^ 44 'l2 L ed. 337; McGarvey v. on Judgments, § 163; ba v £-a- Darnall 134 II . 367, 25 N. E. 1005, wards, 13 Allen (Mass.) 48, 90 Am^ fo L. R. A. 861; Smith v. Goodrich. Dec. 174n ; Rosenthal v. Remck 44 67 111 46 47 N. E. 316; Slauter v. 111. 202; McGarvey v. Darnell. 134 111. It ^''' rT' 7 Tnd 211 367, 25 N. E. 1005, 10 L. R. A. 861. ^t aesw 11 V SI cU. 68 Iowa 110. A foreign executor or administra- 26 N W 42. the question turned up- tor has been held hable to be sued on the admission of a transcript of in cases -^ere he comes mto h the record of the proceedings of the state brmgmg w.th hxm assets o the orphan's court in Pennsylvania, for estate, to the same extent as he tl purpose of establishing a claim would be liable accordmg to ^h against the administrator by the laws of the state m which he wa p'nLylvania court as against an ^PP-"*^^" ,Th"^' ^ 'iTforT h auxiliary administrator in Iowa, and is chargeable m Alabama for aU he the court held it was not evidence assets retamed m his hands or whch and had no binding effect, there be- he has disposed of out o^th course inc. no privitv between the adminis- of his admm.stration and the dis rLrltCre' being no general prin- tributees have ^he right to pursue t ciple o law under which it could be assets of the esta e as 0"^ ^^J^^^ he^ld that a judgment upon the one ^^1^^ ^^ ^:^^ Z^T^ was binding upon the other. ^^f ^la 906, 42 Am. Dec. 617. 124 INDIANA PROBATE LAW. § 85 there is privity between the administrator and the heir in respect to personal estate left by an intestate; yet in respect to the real estate of which such intestate may have died seized there is no privity.^" It is a general rule of law, and the rule which prevails in this state, that the administrator takes no interest in the real estate of his decedent, and that the title to such real estate vests in the heirs at once on the death of the intestate. But, except such as may be exempted by law, all the lands of a decedent are assets subject to use in the payment of his debts. In all matters, how- ever, relating to the real estate the lex rei sitc-e controls, for nothing is better settled than that the law of the place where real and immovable property is situated exclusively governs in re- spect to the rights of the parties, and the modes of transfer and distribution." In this state the allowance of a claim, or a judgment thereon, against the administrator of the estate does not, so far as the decedent's real estate is concerned, conclusively establish the debt. It is binding and conclusive so far as personal assets in the hands of the administrator are concerned, but upon an application by him to sell real estate of the decedent to pay such debt it con- stitutes only prima facie evidence of indebtedness, and the heirs may contest it upon such an application.*^ But where a claim has been allowed, or judgment taken there- on, against an administrator in a foreign state, such judgment, in an application in this state to sell land to pay debts, is not even prima facie evidence of the existence of indebtedness against the estate.*" =" Stone V. Wood, 16 111. 177; Hop- L. R. A. 403; Freem. on Judgments, kins V. McCann, 19 111. 113; Low v. § 564. Bartlett, 8 Allen (Mass.) 259; Freem. " Scherer v. Ingerman, 110 Ind. on Judgments, § 163; McGarvey v. 428, 11 N. E. 8, 12 N. E. 304; Fiscus Darnall, 134 111. Z(yl , 25 N. E. 1005, v. Robbins, 60 Ind. 100; Cole v. La- 10^ L. R. A. 861. fontaine, 84 Ind. 446; Dick v. Dum- " Story Conf. Laws, § 424 ; Wun- bauld, 10 Ind. App. 508, 38 N. E. 78. derle v. Wunderle, 144 111. 40, ZZ N. *== Ela v. Edwards, 13 Allen (Mass.) E. 195, 19 L. R. A. 84; Smith v. 48, 90 Am. Dec. 174n; Rosenthal v. Smith, 174 III. 52, 50 N. E. 1083, 43 Renick, 44 111. 202; Braithwaite v. § 86 FOREIGN EXECUTORS AND ADMINISTRATORS. I25 One good reason for this rule given in one case is this : "It is quite usual for a person to own property, both real and personal, in many different states, and there may be administration in each one of such states. If the allowance of a claim in one of these states afforded evidence to establish charges against the property in all the other states, it would, as may readily be seen, be pro- ductive of fraud. The rule contended for would render pre- carious the title of heirs to the lands inherited by them, and, by shifting the burden of proof, would impose upon them the un- reasonable and difficult task of producing testimony to show the injustice of judgments rendered without notice to them, and in states other tlian that of their domicile."" >J 86. Right to sell real estate. — Whenever any executor or administrator shall be appointed without, and there shall be no executor or administrator within this state, the testator or in- testate not having been, at the time of his death, an inhabitant thereof, the executor or administrator so appointed may file an authenticated copy of his appointment in the circuit court of any county in which there may be real estate of the deceased; after which he may be authorized by such court to sell real estate for the payment of debts or legacies in the same manner and upon the same terms as in the case of an executor or administrator appointed in this state, except as hereinafter provided.** It is an unquestioned principle of general law, that the title to and the disposition of real estate must be exclusively subject to the laws of the country where it is situated.*^ And an executor or admin- istrator, in reference to the sale of real estate of his decedent, derives his power to sell from the law of the place where he at- tempts to operate, and in the case of a foreign executor or ad- ministrator, if local laws exist, they must, at least, be substan- Haney, 14 Mont. 208, 36 Pac. 38, 43 " McGarvey v. Darnall, 134 111. 367, Am. St. 625, 27 L. R. A. lOln ; Mc- 25 N. E. 1005, 10 L. R. A. 861. Garvey v. Darnall, 134 111. 367, 25 " Burns' R. S. 1908, § 2881. N. E. 1005, 10 L. R. A. 861. *= Kerr v. Moon, 9 Wheat. (U. S.) 565, 6 L. ed. 161. 126 INDIANA PROBATE LAW. § 87 tially complied with, before he can secure the authority to sell lands there. '"^ All proceedings by a foreign executor or administrator, in re- spect to the sale of land, shall be had in the court in which such authenticated copy of his appointment shall be first filed; and such court shall have exclusive jurisdiction to direct the sales of any lands of the deceased situated in any county in this state.*' § 87. Same continued. — From a careful examination and comparison of the decisions, the rule seems to be, that suits may be maintained by a foreign executor or administrator, in all matters relating to the personal property, debts, and choses in action of the deceased, and that an authenticated copy of his appointment is not an absolute prerequisite to such suit, but such copy is filed in court simply as evidence of the appointment of such executor or administrator; while in proceedings relating to the sale of the real estate of the deceased by such foreign execu- tor or administrator, it is necessary, for the purpose of giving the court jurisdiction in such proceedings, that an authenticated copy of the appointment of such executor or administrator should be filed in the proper court prior to the commencement of the pro- ceedings to sell such real estate.*^ A foreign executor or administrator, desiring to sell real estate of his decedent in this state, must, after filing a duly authenti- cated copy of his appointment in the court in which the action is brought, proceed regularly by petition and notice as is required of resident executors or administrators.*® A failure, however, to file the authenticated copy of his ap- pointment as required by this statute does not render a sale of land made by a foreign executor or administrator void. It is an irregularity, but is not such an error as deprives the court of *' Lucas V. Tucker, 17 Ind. 41. 228; Upton v. Adams 27 Ind. 432; *■ Burns' R. S. 1908, § 2885. Rapp v. Matthias, 35 Ind. Z2>2 ; Naylor "Jelly V. Stevens, 4 Ind. 510; Mat- v. .Moody, 2 Blackf. (Ind.) 247. lock V. Powell, 14 Ind. 378 ; Jeffer- " Rapp v. Matthias, 35 Ind. 332. sonville R. Co. v. Hendricks, 26 Ind. § 88 FOREIGN EXECUTORS AND ADMINISTRATORS. 12/ jurisdiction, and its order made in such case is not subject to collateral attack.^** § 88. Same — Bond required. — Whenever it shall appear to the court that such foreign executor or administrator is bound, with sufficient surety, in the state or country in which he was appointed, to account for the proceeds of such sale, for the pay- ment of debts and legacies, and that, by the laws of such state or country, his sureties are liable for the proper accounting for such proceeds, and a copy of such bond, duly authenticated, shall be filed in such court, no further bond shall be required of him here. If, however, he be not thus sufficiently bound, he shall give bond in said court as is required of executors or adminis- trators appointed in this state." "^ Bailey v. Rinker, 146 Ind. 129, " Burns' R. S. 1908, § 2884. 45 N. E. 38. CHAPTER VI. BONDS OF EXECUTORS AND ADMINISTRATORS. §89. The subject generally. §99. Bonding companies as sureties. 90. What fund primarily secured. 100. Bond required on application to 91. First or general bond. sell real estate. 92. What this bond covers. 101. Such bond a prerequisite to 93. Separate bonds. sale. 94. To whom bonds payable. 102. Approval and custody of bonds. 95. Bond valid, when. 103. New bond required on destruc- 96. When additional bond may be tion of old. ordered. 104. Validity not aflfected. 97. Liability of sureties; effect of 105. Release of sureties. new bond. 106. Statute remedial. 98. When principal liable in some 107. Bonds of foreign executors, other capacity. etc. § 89. The subject generally. — Administrators and execu- tors, being- trustees of the funds which come to their hands in the settlement of the estates entrusted to them, are generally re- quired to furnish some kind of security for the protection of those who are ultimately entitled to such funds. The giving of a bond by an administrator, prior to entering upon the duties of his office, was the usual practice of the English courts from early times, although the executor was not generally obliged to give such security, as he was selected by the testator, who was pre- sumed to have adjudged him fit for the office without security. In the United States, however, the executor, as well as the ad- ministrator, is regarded as in the nature of a trustee, and it is the rule in most of the states that the executor must give bond as well as the administrator, although the rule is not invariable. In those states where the executor is not bound by law to give bond, he may be required by the testator in his will to do so ; and where this is done the probate court will not grant him letters until a bond is filed. ^ 'Duncumban v. Stint, 1 Ch. Ca5. 121; Rous v. Noble, 2 Vern. 249; 128 § 89 BONDS OF EXECUTORS AND ADMINISTRATORS. 1 29 In this state there is no exception, and no letters will be granted to either an executor or administrator until he gives bond. Nor can an executor be excused from giving bond by any provision in the will excusing him from so doing. The giving of an administration bond does not relieve an executor or administrator from a personal liability for any devastavit of the estate. The remedy upon the bond is merely cumulative, and in the nature of additional security." § 90. What fund primarily secured. — The personal prop- erty only of a decedent is the fund to be secured by the bond given at the time letters are issued. The means for the payment of the debts of deceased persons are divided into two funds, primary and secondary. The primary fund consists of the per- sonal property of the deceased and such real estate as may be directed by the will to be sold ; the secondary consists of the de- cedent's real estate generally. It is not presumed, when letters of administration are granted, that the secondary fund will have to be resorted to, and, therefore, such fund is not considered in issuing the letters and taking the original bond. The primary fund only is taken into account, and such bond is given simply to secure the proper application of that fund. If it becomes neces- sary, in the settlement of the estate, for the administrator to resort to this secondary fund, he assumes an additional trust and Sullivan's Will, 1 Tuck. (N. Y.) 94; vindicate the lawful inheritance and Crosswell Extrs. & Admin., § 83. dower to the widow and next of kin, In Woemer's Am. Law Adminis- on the other, and so appropriate and tration, § 249, is given the origin of efficient in accomplishing this desired the law requiring administrators to end is the administration bond consid- give bond. It reads as follows : "The ered to be, that not a single state has English statute, requiring bond to be ever ventured upon the experiment of given to the ordinary upon commit- substantially changing the law in this ting administration of the goods of respect. The form of such a bond, any person dying intestate, is incor- enacted, 'anno vicesimo secundo et porated into the statutes of every tertio Caroli II,' corresponds substan- state in the Union. So great has at tially to the form required by our all times been the anxiety of legisla- modern statutes, even to the 'two or tors and judicial tribunals in this more able sureties' demanded." country to protect the just demands "Thomas v. Chamberlain, 39 Ohio of creditors on the one hand, and to St. 112. 9— Pro. Law. 130 IMMA.NA I'ROHATK LAW. § 9I becomes burdened witb new duties, and is re(|nired to ^i\e a new bond to cover the new trust, and the two trust funds and the bonds given for their proper appHcation are kept distinct and separate, and the sureties in tlie several bonds are hable .{e of the trustee's duties." ccutor on his general Ixmd, when In the case of Lane v. State, 24 Ind. such executor was also appointed by 421, it was held that, where it a|)- the will of :i trustee to execute a peared that a second bond was given trust created by the will, said: "We (o cover the same liabilities as were are not convinced by this course of covererl by a prior bond, the sureties reasoning that the bond of an execti- u])fin the second boiul woidd not be tor, given to secure- the faithful (lis- liable until the remedy u|)on the first charge of bis duties as cxccutr)r, bond had been exhausted, ought to be or cnn be constrnefl as "State v. Cloud, 04 Ind. 174; conrlitioned for the faithful discharge Kogcrs v. State, 26 Ind. ,Api>. 144, S') N. E. 334. § ccial. and the form of the bond should vary to fit each particular case." The rule is to date the order of appointment, bond and letters of administration, all on the same day, so when an administrator h:is fully qualified by giving bond as required by the statute, the • Rums' R. S. 1908. § 2759. • State v. Barrett, 121 Iiul. 92, 22 'State V. Hoofl. 7 Blackf. (Ind.) N. E. 969. 1J7. •Schouler Extrs. & Admrs., § 140. 132 INDIANA PROBATE LAW. § 93 order of court may be considered his sufficient appointment, whether he receives his formal letters or not at that lime; they are considered as ready for delivery/" A surety who signs a bond conditionally must retract his sig- nature before the bond is returned to court, and has been acted on by the court and innocent parties. ^^ A bond given by one acting under a void grant of administra- tion, while it can derive no validity from the statute, may be good as a common law bond.^- Under this statute the bond therein required is a prerequisite to the issuance of either letters testamentary or of administra- tion. The amount of security required upon the bond should be cal- culated upon the value of the property to be administered in the state. ^^ But property of the decedent which has been fraudu- lently transferred need not be taken into consideration in fixing the amount.^* The sureties should each be worth, at least, the penalty fixed in the bond, over and above all debts, and property exempt from execution.^" Such general bond ordinarily extends only to the management of the personal property, and does not extend to acts or omis- sions in making and accounting for sales of real estate. ^° § 93. Separate bonds. — This statute requires a separate bond for each executor or administrator; and where a joint bond has been given by two or more executors or administrators, such bond is, in legal effect, the separate bond of each, and not the joint bond of all-; and the sureties therein are the sureties of each separately, and not of all jointly, in their separate bond, and not "State V. Price, 21 Mo. 434. "Lewis v. Grognard, 17 N. J. Eq. " Canal & Bank Co. v. Brown, 4 La. 425. Ann. 545; Wolff v. Schaeffer, 74 Mo. "In re Peck, 3 Dem. (N. Y.) 548. 154. "Sutton V. Weeks, 5 Redf. (N. Y.) "McChord V. Fisher, 13 B. Mon. 353. (Ky.) 193. '^ Rogers v. State, 26 Ind. App. 144, 59 N. E. 334. § 94 BONDS OF EXECUTORS AND ADMINISTRATORS. 1 33 in their joint bond." The rule in this state was once different.^^ But these cases are expressly overruled in the decision of the court in the case of State v. Wyant, 67 Ind. 25. One co-executor or co-administrator is not responsible for the assets of his decedent's estate received by the other, but each is held responsible only for the assets received by him ; and he can- not be held liable for any default of such co-executor or admin- istrator/® unless the waste, devastavit, mismanagement or de- fault of the other was with the knowledge, consent or conniv- ance of such co-executor or administrator.-'' The bond should be separate and several as to the entire pen- alty, but it has been held that a bond which divides the penalty among the sureties, making each liable for a certain specified part of such penalty, is not, for that reason, void, though such bonds should not be favored by courts.-^ Xor should the giving of several and separate bonds instead of a single bond be permit- ted." § 94. To whom bonds payable. — The bonds of executors and administrators must be made payable to the state of Indiana, and shall be for the use of, and in trust for, the person or persons concerned." The statute requiring executors and administrators to give bond with surety, imposes upon them no new duties, but is only an additional remedy to those interested in the estate,^* and persons so interested in such estate may, for any waste or maladministration on the part of such executor or administrator, maintain an action upon any such bond." " State, ex rel., v. Wyant, 67 Ind. " Manz v. Oakley, 120 N. Y. 84, 24 25 ; Hurlburt v. State, ex rel., 71 Ind. N. E. 306, 9 L. R. A. 223n ; Osborn, 154. Estate of, 87 Cal. 1, 25 Pac. 157, U " Braxton v. State, ex rel., 25 Ind. L. R. A. 264. 82 ; Prichard v. State, ex rel.. 34 Ind. ^ Baldwin v. Standish, 7 Cush. 137; Moore v. State, ex rel., 49 Ind. (Mass.) 207. 558. " People v. Lott, 27 111. 215. "Call V. Ewing, 1 Blackf. (Ind.) =^ Songer v. :Manwaring, 1 Blackf. 301; Ray v. Doughty, 4 Blackf. (Ind.) (Ind.) 251. 115; Davis v. Walford, 2 Ind. 88; =* Eaton v. Benefield, 2 Blackf. Braxton v. State, ex rel., 25 Ind. 82; (Ind.) 52. Moore v. State, ex rel., 49 Ind. 558. "* Persons v. Crane, 2 Ind. 157. 134 INDIANA PROBATE LAW. § 95 The oaths required by this section of the statute should be administered by the cleric of the court in which the bond is filed, but the failure to have them so administered, while erroneous, does not render the administration void."® The purpose of the bond is to secure a proper administration and distribution of the trust fund, and it is doubtful if an admin- istrator or the sureties would be permitted to escape liability on a bond that by mistake had been made payable to some one other than the state as provided in the statute. The courts would not be strict nor technical in such a case, and if tlie bond should be made payable to one or more of the interested parties, or to any other person, it should be held that the obligee in the bond, who- ever it might be, was a trustee for whoever might be interested in enforcing the penalty of the bond.-' § 95. Bond valid, when. — A bond is valid, and may be en- forced against the obligors therein, although no penalty is men- tioned in such bond, and although the clerk has failed to approve it."® Persons who, upon the request of an administrator, sign '" Pickens v. Hill, 30 Ind. 269. made to an administrator de bonis " A bond made payable to the non, instead of to an administrator de "Governor"' instead of the state is not bonis non with the will annexed, the void. Sikes v. Truitt, 4 Jones Eq. (N. surety was held. Newberger v. Fin- Car.) 361; Johnson v. Fuquay, 1 ney, 17 Ohio C. C. 215. Dana (Ky.) 514; Farley v. McCon- ==* State, ex rel., v. Britton, 102 Ind. nell, 7 Lans. (N. Y.) 428. 214, 1 N. E. 617. By § 1278, Burns' If made to the "county," instead of R. S. 1908, it is provided that no "people." Bay County v. Brock, 44 bond, recognizance or written under- Mich. 45, 6 N. W. 101. taking taken by any officer in the dis- Or "people of the state" instead of charge of the duties of his office, state. Tevis v. Randall, 6 Cal. 632, shall be void for want of form or 65 Am. Dec. 547. substance or recital or condition. In But where the testator was de- placing a construction upon this sec- scribed as James, when it should tion the courts have held that it has have been Joseph, the sureties were the effect to render all bonds or ob- not held. McGovney v. State, 20 Ohio ligations taken by officers in the dis- 93. charge of their official duties binding Likewise where made to the Su- upon the persons executing such ob- preme Court instead of district court, ligations, no matter how defective in Myres v. Parker, 6 Ohio St. 501. form. A few of such cases are cited. But where the bond by mistake was Koeniger v. Creed, 58 Ind. 554 ; Bugle 95 BONDS OF EXECUTORS AND ADMINISTRATORS. 135 his official bond as co-sureties in the presence of the clerk without inquiry or explanation, but expecting the bond to be signed by others whose names were therein inserted as co-sureties, and the clerk, without waiting for further signatures, approves and files such bond, become liable thereon, and such bond is valid, and binding upon the persons who so sign it.-® The bond, when properly executed, will be valid although it may never have been formally approved. If the bond is executed and filed in the court making the appointment, its approval will be presumed.^" And such bond will be valid where the amount of the penalty has been omitted therefrom.^' V. Myers, 59 Ind. 11 ; Fee v. State, ex rel., 74 Ind. 66; Faurote v. State, ex rel.. 110 Ind. 463, 11 N. E. 472. =» State V. Gregory, 119 Ind. 503, 22 N. E. 1. In the case of State, ex rel., V. Pepper, 31 Ind. 76, it is held that when a bond has been signed by a surety and delivered to the princi- pal obligor upon the condition that others not named in the instrument shall sign before it is delivered to the obligee, and it is delivered without such signatures being obtained, and such obligee has no notice of such conditions, the surety so signing will be bound. See, also. State, ex rel., v. Garton, 11 Ind. 1, 2 Am. Rep. 315. In the case of State v. Potter, 63 Mo. 212, 21 Am. Rep. 440, there is a very extended review of the authorities as to the effect of the delivery of a bond contrary to an agreement made with a surety at the time of his signing, the bond in such case being that of a guardian, and the court, in concluding its opinion, said: "Again, it concerns the state, that the heritage of the helpless, confided to the protection of her courts, should not suffer detriment. The conse- quences would be fraught with dis- aster, and it would be subversive of the plainest dictates of public policy if sureties in such cases were per- mitted, by means of some 'ill-remem- bered conversation,' or some occult understanding, never disclosed but under the shadow of impending loss, to escape liabilities which their own solemn deed and recorded specialty announces them to have incurred." "Bank v. Dandridge, 12 Wheat. (U. S.) 64, 6 L. ed. 552; Brown v. Weatherby, 71 Mo. 152; Cameron v. Cameron, 15 Wis. 1, 82 Am. Dec. 652. A bond given by one acting under a void grant of administration, while deriving no validity from the statute, may be good as a common-law bond. McChord v. Fisher, 13 B. Hon. (Ky.) 193; State v. Creusbauer, 68 Mo. 254. But the fact that an administrator's appointment was improper, will not exempt him or his sureties from lia- bility on his bond to parties interested after he has acted under the grant of administration. Cleaves v. Dockray, 67 Me. 118; Shaker's Appeal, 43 Pa. St. 83, 82 Am. Dec. 552. "State V. Britton, 102 Ind. 214, 1 N. E. 617. The omission of the proper number of sureties, or the ac- 136 INDIANA PROBATE LAW. § 95 The acceptance of an insolvent surety will not invalidate the appointment made upon such bond nor affect in any way the validity of the administrator's acts; nor will the fact that the bond is for an amount less than the law requires affect the valid- ity of the administration/^ A bond conditioned for the discharge of his duties "according to law" binds the obligor to the observance of all duties imposed by the law at any time during the continuance of his office, whether such laws were enacted before or after the execution of the bond.^^ A bond is valid and effective although the conditions set out in it are not in strict accord with the statute ; and though there may be stipulations and conditions in it in excess of what the statute requires.^* And though the statute requires two or more sureties, yet a bond is not rendered invalid if signed by only one surety." Any private arrangement between the principal and his sure- ties can have no effect upon the validity of a bond after its ac- ceptance and approval. ^"^ The bond of an executor given for the faithful discharge of his duties as executor cannot be construed as conditioned for the faithful discharge of his duties as trustee under the will." ceptance of an insolvent surety, or " Dawson v. State, 38 Ohio St. 1. even the entire absence of sureties al- " Probate Court v. Strong, 27 Vt. together will not, in the absence of 202, 65 Am. Dec. 190; Lanier v. Ir- statute, make the grant of adminis- vine, 21 Minn. 447; Holbrook v. Bent- tration absolutely void. Herriman v. ley, 32 Conn. 502; Newton v. Cox, l(i Janney, 31 La. Ann. 276; Mumford Mo. 352; Woods v. State, 10 Mo. V. Hall, 25 Minn. 347. Omissions are 698; Ordinary v. Cooley, 30 N. J. L. sometimes supplied in the blank by 179. construing the decree of appointment "= Steele v. Tutwiler, 68 Ala. 107 ; and the bond together. State v. Price, Slagle v. Entrekin, 44 Ohio St. 637, 15 Mo. 375. And a bond has been 10 N. E. 675. held valid although it omitted the ^ Brown v. Davenport, l(i Ga. 799; conditions of its execution. Rose v. Cohea v. State, 34 Miss. 179. Winn, 51 Tex. 545. '^ Hinds v. Hinds, 85 Ind. 312; '= Herriman v. Janney, 31 La. Ann. Coggeshall v. State, 112 Ind. 561, 14 276; Slagle v. Entrekin, 44 Ohio St. N. E. 555. 637, 10 N. E. 675 ; Mumford v. Hall, 25 Minn. 347. § g6 BONDS OF EXECUTORS AND ADMINISTRATORS. 1 37 Neither the office of administrator, nor, in cases where an executor is required to give bond, that of executor, can be re- garded as filled until the administration bond is actually given, and neither can act until he has qualified by giving the neces- sary bond and taking the oath of office.^® § 96. When additional bond may be ordered. — There is. in probate courts, inherent power to compel new and additional security to be given by executors and administrators whenever justice and the interest of the estate require it; and whenever it becomes apparent to such court that the sureties of an adminis- tration bond have become insolvent, or that the penalty in the bond is in too small an amount, or that the bond is for any cause insufficient, the court has the power to compel new and addi- tional bond.«° Such power, however, is now expressly conferred upon pro- bate courts in most, if not all, the states by statute. The court, having jurisdiction of the administration of an estate, may require, from the executor or administrator of the estate, additional security when deemed necessary for the safety of the estate.''" The exercise of this power is largely within the discretion of the court, and may extend to the requiring of a new and additional bond or to additional sureties upon bonds already executed. When by order of the court such new or additional bond or other and additional sureties are required, two days' time shall be allowed therefor; and if such order be not compHed " Woerner Am. Law Admin., § 253. to find any law that justified the *• Woerner Am. Law Admin., § 254. court in requiring the appellant to "Pea V. Pea, 35 Ind. 387. In this give bond to secure the judgment, case, wherein it was sought to com- and in default, that an attachment pel an administrator to charge him- should issue, not against him person- self with personal property belonging ally, but against his property. The to the estate which it was alleged he court of common pleas has the power failed and refused to charge himself, to require an administrator to give the court in considering the power of an additional bond in certain cases, the lower court to require such ad- but that would be in another and dif- ministrator to give an additional ferent proceeding." bond, said : "We have been unable 138 INDIANA PROBATE LAW. 97 with in that time the court shall remove such executor or admin- istrator and supersede his letters.*^ The fact that the property of the sureties is not in the aggre- gate equal to the value of the estate in the hands of the adminis- trator or that one or more of the sureties has died, or has be- come insolvent, is ground sufficient for requiring of the adminis- trator additional security.-" And the administrator should al- ways be required to furnish a new bond to cover newly discovered property of the decedent, not estimated in fixing the security of the first bond." At any time when the existing security seems to the court to be inadequate, it may require additional bonds to be given : and if not given within the time required by the court such e.xecutor or administrator, so failing, should be removed."** An order requiring an administrator to give a new bond af- fects his right to administer, and suspends his authority to act pending a compliance with the order." § 97. Liability of sureties — Effect of new bond. — Sureties on any bond of an administrator executed pursuant to an order of court, are liable for any breach of its conditions after its execution.*^ The liability of the surety is coextensive with the liability of the principal in the bond, and anything done by the principal which constitutes a lawful breach of the bond renders the sure- ties liable. From the fact that the surety usually assumes an obligation on the bond without any consideration to himself, his contract of suretyship is always strictly construed and the liability limited to " Burns' R. S. 1908, § 2767. alleging the release of his co-surety, '= Renfro v. White, 23 Ark. 195. the filing of a new bond, by order of *^ Calhoun v. McKnight, 36 La. court, and the occurrence of the al- Ann. 414. leged breaches of the bond after the "National Bank v. Stanton, 116 execution of the new bond, is not Mass. 435. subject to demurrer, the liability of *' Bills V. Scott, 49 Tex. 430. the sureties on the old bond being at **Owen V. State, 25 Ind. 371. In an end after the execution of the an action on administrator's bond, a new one. State, ex rel., v. Barrett, paragraph of answer by a surety 121 Ind. 92, 22 N. E. 969. § 97 BONDS OF EXECUTORS AND ADMINISTRATORS. 139 the official acts of the principal. Acts which do not lie in the line of the official duty and authority of an executor or administrator, those not done under color of the office, do not bind the sureties upon the administration bond. It is not the personal acts of such officer, but his official acts which fix the liability of the sureties upon his bond.*' A surety is not discharged from liability by reason of the death of the administrator; nor, if the estate is unsettled, will the death of the administrator start the statute of limitations to run- ning in favor of the sureties on his bond. The hability of the surety does not become fixed until a final account has been ren- dered on behalf of such deceased administrator and approved by order of the proper court.*' New bonds are not necessarily additional bonds. An addi- tional bond is cumulative and adds to the security already exist- ing while a new bond made by order of court upon the applica- tion of sureties for release is in the nature of a substituted bond and stands in the place of the original bond. The character of the bond afifects the liability of the surety. In the one instance the sureties upon the original bond are discharged from further liabilitv, while those on the new bond become alone liable for the future' administration; while in the other instance all the sureties upon all the bonds are liable. This distinction should not be overlooked in fixing liability. The sureties upon an additional bond become liable tor all monev or property in the hands of the executor or administrator at the time of the execution of the bond, or which may there- after come into his hands."^ If, because of the insufficiency of the original bond or the in- "McKee v. Griffin. 66 Ala. 211; 371. In the case of State ex rel Curtis V. National Bank, 39 Ohio St. v. Hood, 7 Blackf. (Ind. 2 .t > ^79- Gerber v -\ckley, 11 Wis. 43, held that, as a general rule, the 1Q A,r Reo 751 sureties on the bonds of executors or 47ate V Houston, 4 Blackf. administrators are only liable or the (Ind) '91 WHliaL V. State, 68 acts of their principals after the exe- m"s 680 io So. 52, 24 Am. St. 297. cution of bonds by them, such bonds ^Bal^'v State, ex rel., 15 Ind. being prospective in the.r operation. 321 : Owen v. State, ex rel., 25 Ind. I40 INDIANA PROBATE LAW. § 98 solvency of the sureties thereon, the court requires a new bond to be given, the sureties upon this additional bond do not become liable until the remedy upon the first bond is exhausted/" But while the sureties upon the old bond would be liable for any breach of such bond before the new one was accepted and ap- proved by the court, it seems that for all such subsequent breaches the liability is upon the new bond and not upon the old." Where there is nothing appearing on the face of such addi- tional bond to indicate an intention to make such second bond subsidiary to the first, but it, on the contrary, appears to be a primary security, the sureties on such bond are primarily liable for any breach thereof, and suit can properly be instituted on the second bond alone, without having first exhausted the first bond, or such suit may be on the first and second bonds together, or upon the first bond alone, both being primar}- undertakings relat- ing to the same matter ; the last bond not being subsidiary to the first, but being a primary and concurrent security." But if such additional bond is executed as subsidiary security, the prior bond should be exhausted before resort is had to the second bond,^^ A deposit, of cash or a certified check, for the full amount of the bond, with the clerk of the proper court, in any probate pro- ceeding where a bond is required by law, may be accepted in lieu of sureties upon the bond.^* § 98. When principal liable in some other capacity. — The subject of this section is well expressed in Woemer's American Law of Administration in section 255 as follows: ''It is sometimes of importance to ascertain in what capacity a '*Lane v. State, 24 Ind. 421. older bond. Lewis v. Gambs, 6 Mo. "State V. Barrett, 121 Ind. 92, 22 App. 138. X.^E. 969. ='Lane v. State. 24 Ind. 421. Where "Allen V. State, 61 Ind. 268, 28 the first set of sureties are properly Am. Rep. 673; State v. Mitchell, 132 released, the effect of the release is Ind. 461, 32 X. E. 86. Money paid to make the second set of sureties lia- on the general liability of one who is ble to the extent of their bond. Mor- surety on both bonds, in the absence ris v. Morris, 9 Heisk. (Tenn.) 814. of directions at the time of payment, "^ Burns' R. S. 1908, § 1353. will be applied on his liability on the § 99 BONDS OF EXECUTORS AND ADMINISTRATORS. I4I principal, who has given bond as executor or administrator, and also as guardian, trustee or other fiduciary, with different sure- ties, is chargeable with assets. In such case it is to be remem- bered that, where the obligation to pay and the right to receive are united in the same person, the law operates the appropriation of the fund to the discharge of the debt. Hence, where an ad- ministrator who is also guardian of a minor distributee, has made final settlement, and there is an order directing the pay- ment of the distributive shares, such order will operate to charge him in his capacity as guardian, and relieve his sureties on the administration bond; but until such final settlement is made, or the assets accounted for, the former sureties remain liable; and where the share due the minors is not ascertained until after their majority, the debt becomes payable to them and not their former guardian, and the sureties on the administration bond are not discharged. So where a surviving partner is executor of the deceased partner, his sureties on the executor's bond do not become liable for his acts as surviving partner until the partner- ship affairs are wound up and the interest of the estate therein ascertained. But where an administrator has no further use for assets as such, and is also guardian of a distributee, he will be treated as holding them as guardian, even if he has not made final settlement." § 99. Bonding companies as sureties. — In this state it is provided by statute that bonding or surety companies, both local and foreign, may be accepted as sureties upon any bond which the law requires an executor or administrator to make in the progress of the settlement of the estate." The statute also provides that an executor or administrator may include as a part of the expense of executing his trust such reasonable sum paid such surety company for becoming his surety as may be allowed by the court in which he is required to account, or the judge thereof, not exceeding, however, one per centum per annum of the amount of such bond.^^ "Burns' R. S. 1908, §§ 5728, 5729; 446, 68 N. E. 316. Barricklow v. Stewart, 31 Ind. App. "Burns' R. S. 1908. §§ 5734, 5761. 142 INDIANA PROBATE LAW. § lOO No company having signed any such bond shall be permitted to deny its corporate power to execute such instrument or incur such liability in any proceeding to enforce liability against it under any such bond.^^ Such companies may be released as sureties in the same man- ner as other sureties are released."" § 100. Bond required on application to sell real estate. — Since the personal property of a decedent which comes to the hands of his executor or administrator is the primary fund out of which his debts are to be paid, resort may not be had to his real estate, for that purpose, until it is made to appear that the personal estate is insufficient. It is the law in this state that the conditions of the original administration bond do not include the proceeds of real estate, so that the sureties on such bond are not liable for the loss or mis- application of the funds arising from the sale of lands. Before an order for the sale of real estate by an administrator can be made, therefore, it becomes necessary for him to file a new bond conditioned that he will faithfully administer the assets arising out of the sale of the real estate. ^^ This rule as to giving bond applies to executors as well as administrators except in cases where the real estate is devised by will to the executor with directions that it be sold for the pay- ment of debts or legacies.®" Previous to making an order for any such sale, the executor or administrator shall file in the office of the clerk of such court a bond, payable to the state of Indiana in a penalty not less than double the appraised value of the real estate to be sold, with sufficient freehold sureties to be approved by the court and con- " Burns' R. S. 1908, § 5735. Munson v. Cole, 98 Ind. 502; Davis =' Burns' R. S. 1908, § 5760. v. Hoover, 112 Ind. 423, 14 N. E. =«Worgang v. Clipp, 21 Ind. 119, 468; Valentine v. Wysor, 123 Ind. 83 Am. Dec. 343 ; Rogers v. State, 26 47. 23 N. E. 1076, 7 L. R. A. 788n ; Ind. App. 144. 59 N. E. 334. Bailey v. Rinker, 146 Ind. 129, 45 N. ""Burns' R. S. 1908, §§ 2876, 2877; E. 38. § lOI BONDS OF EXECUTORS AND ADMINISTRATORS. 1 43 ditioned for the faithful discharge of his trusts according to law."^ The bond required by this statute is entirely distinct from, and disconnected with, the original bond. It is not treated as addi- tional to it, and no matter how ample and satisfactory the orig- inal bond may be as a security, the sale of a decedent's real estate can be permitted only upon the filing of a new and independent obligation. Such obligation is to be executed as a part of the proceedings on the application for the sale.^" The sureties upon such bond can only be held liable for moneys received by the administrator or executor from the sale of real estate.^^ Under a former statute"* the bond given on an application to sell real estate was not a primary security, but only subsidiary to the original bond given by the executor or administrator. And upon this statute are based the decisions in the cases of Salyer v. State, 5 Ind. 202, and Salvers v. Ross, 15 Ind. 130. The rule in these cases cannot apply under the present statute. § 101. Such bond a prerequisite to sale. — While the stat- ute under consideration makes the filing and approval of a bond by an executor or an administrator a prerequisite to an order for the sale of a decedent's real estate, yet where such an order has been obtained and a sale made without the filing of such addi- tional bond, and the money received from such sale faithfully accounted for by such executor or administrator, the sale will not be void. As is said by the court in one case, "Everything has been accomplished that a bond could have accomplished. The heirs have no equity. They have received the full benefit of the sale. A bond is only required to secure the heirs against the mis- appropriation of the sale money. Here they have had all the bene- fit of that."«= "Burns' R. S. 1908, § 2870. "Foster v. Birch, 14 Ind. 445; Mc- •-^ Warwick V. State, ex rel., 5 Ind. Keever v. Ball, 71 Ind. 398; Jones v. 350. French, 92 Ind. 138; Davidson v. "Burtch V. State, ex rcl.. 17 Ind. Bates, 111 Ind. 391, 12 N. E. 687. 506: Worgang v. Clipp, 21 Ind. 119, Where an administrator was ordered 83 Am. Dec. 343. to give an additional bond to secure "R. S. 1831, pp. 156-161. the proceeds of an administrator's 144 INDIANA PROBATE LAW. § I02 The statute requires "sufficient freehold sureties" upon such bond, but the number of sureties deemed sufficient is not men- tioned. It has been held that where a bond was given with one surety only, and such bond was approved by the court, that this was such an adjudication ujwn the sufficiency of the bond as would be conclusive.®** Where it appears from the record that a bond was given, al- though no bond appears in the record, a sale of real estate will not be vitiated, for the presumption is that a bond was given.*^ If a sale of real estate has been made by an administrator without filing the bond required by this statute, and after such sale the court compelled him to give bond, the sureties on such bond will be liable for the proper application of the proceeds of such sale."* § 102. Approval and custody of bonds. — All bonds given in probate proceedings should be approved by the judge if pre- sented in term time of the court, or by the clerk of the proper court if taken in vacation. If approved by the clerk he should report his act at the succeeding term of court for the approval or disapproval of the judge. Unless there appears a good and suffi- cient cause for disapproval the action of the clerk should be sus- tained, as in vacation such clerk is vested with considerable sale of real estate, and it appears order to sell real estate of the de- from the record that he did so, cedent; a master commissioner was though the bond is not in the record, appointed to make the sale, and he it will not be presumed that such gave bond, with sureties, conditioned bond was not executed, as the fail- for the faithful discharge of his ure to execute such bond would not duties. He sold the land and con- vitiate the sale where the proceeds verted a part of the proceeds to his of the sale were not misappropriated, own use. Held, that the appointment Marquis v. Davis, 113 Ind. 219, 15 N. of the commissioner was without au- E. 251 ; Clark v. Hillis, 134 Ind. 421, thority of the statute and void, that 34 N. E. 13. the sale was void, and that the bond ** Marquis v. Davis, 113 Ind. 219, was void by statute, and, being with- 15 N. E. 251 ; Schneck v. Cobb, 107 out consideration, it was also void as Ind. 439, 8 N. E. 271. a common law bond. State, ex rel., "Clark V. Hillis, 134 Ind. 421, 34 v. Younts, 89 Ind. 313; Cunningham N. E. 13. An administrator, on v. Jacobs, 120 Ind. 306, 22 N. E. 335. proper petition, in 1876, obtained an °* Fleece v. Jones, 71 Ind. 340. § I03 BONDS OF EXECUTORS AND ADMINISTRATORS. 1 45 authority in probate matters.'''' Such bond when accepted and approved should be left in the custody of the clerk, who should record the same in a book kept for that purpose. Bonds of an executor and administrator are official documents and cannot be removed from the office of the clerk. If they should be needed as evidence, certified copies should be procured, but the originals must never be permitted to leave the custody of the clerk.'^" If both the original and the record should be lost or destroyed, a minute entry of the court, reciting the appointment of the ad- ministrator, the approval of the bond, its amount, and the names of the sureties, is competent evidence, and, if not rebutted, is sufficient to authorize a substitution as the record of the court, but is not conclusive as to the execution of the bond.^^ § 103. New bond required on destruction of the old. — All guardians, administrators and executors whose official bonds have been or may be destroyed in any general or notorious destruction of the records of any county in this state shall, within three months thereafter, file new bonds, to the acceptance of the proper officer; or, failing so to do, shall cease to be such guardians, administrators or executors, and the proper court shall appoint a successor. The liability upon such new bond shall commence from the time of filing the same in the proper office; and the sureties in the bonds destroyed shall not be liable for any default or miscarriage of their principal occurring after such new bond has been filed. ^" § 104. Validity not affected. — No defect, informality or il- legality in the appointment of an executor or administrator, or in the execution, approval or filing of his bond, shall affect the validity of such bond, but he and his sureties therein shall be as fully bound as if such appointment had been regularly made and such bond executed, approved and filed in due form of law; nor "Burns' R. S. 1908, §§ 2725, 2759, '"Miller v. Gee, 4 Ala. 359. 2760; B-rown v. King, 2 Ind. 520; "Tanner v. Mills, 50 Ala. 356. Barricklow v. Stewart, 31 Ind. App. '= Burns' R. S. 1908, § 1319. 446, 68 N. E. 316; Collier v. Jones, 86 Ind. 342. 10— Pro. L.wv. 146 INDIANA PROBATE LAW. § IO5 shall any surety be released therefrom by reason of any condi- tion, inducement or consideration causing him to sign such bond as surety.''^ The bond of an administrator with the will annexed, condi- tioned that he will faithfully discharge his duties as administrator simply, is not, for that reason, defective.'* The failure to ap- prove the bond does not invalidate it.'^° § 105. Release of sureties, — Any surety upon any bond of any executor, administrator, administrator with the will annexed, or de bonis non, may apply to the circuit court approving such bond to be released therefrom by filing his request therefor with the clerk of said court and giving ten days' notice thereof to the principal in such bond. Upon proof of such notice, the court shall order such principal, within a time to be fixed by the court, not exceeding five days, to execute a new bond, with penalty and sureties, to the approval of the court. Upon failure to execute such new bond within the time limited, he shall be forthwith removed by the court ; and such surety shall, as soon as such new bond is furnished, or such principal removed by the court, be re- leased from any liability for any malfeasance or misfeasance of such principal thereafter occurring, but shall remain liable for his prior acts and omissions. And if a new bond be executed, the principal and the sureties therein shall be and continue liable for the administration of the estate or the execution of the will, as the case may be, in like manner and to the same extent that the obligors in the original bond would have been bound had it con- tinued in force.'® § 106. Statute remedial. — This statute is a remedial one for sureties, and as such should be liberally construed. It was intended to include bonds for the sale of real estate by executors and administrators, as well as original bonds by them, executed to secure the faithful discharge of their general duties. The ■'Burns' R. S. 1908, § 2761. "State v. Britton, 102 Ind. 214, 1 " Owen V. State, 25 Ind. 371. N. E. 617. '* Burns' R. S. 1908, § 2769. § I06 BONDS OF EXECUTORS AND ADMINISTRATORS. 1 47 Statute provides for both classes of bonds, and the remedy of the surety is equally applicable and appropriate to each. And this remedy is an absolute one in favor of a surety, and is not de- pendent on the discretion of the court. It is not necessary for the surety applying for a release under this statute to give any reason for his wish to be discharged. His mere request is sufficient." Such release applies only to future liability upon such bond, and is not a release of a surety from any liability which has already occurred upon the bond.'^^ If, by reason of the applica- tion of the sureties upon any bond to be released therefrom, and by order of court a new bond is given, the obligors in this new bond are only liable for defaults occurring after its execution."^" And when a new bond is given in obedience to the order of the court, and is approved by such court, the sureties upon the old bond are released from any further liability thereon without a formal order of release by the court."^" In an action on the bond of an executor or administrator against the sureties, an answer by such sureties to the complaint, that, before a breach of the bond occurred, they had been re- "Kendrick v. Wilkinson, 18 Ind. the same may have influenced the 206. first security in seeking a discharge. "State V. Barrett, 121 Ind. 92, 22 The administrator may have dis- N. E. 969; State, ex rel., v. Page, 63 charged his whole duty up to that Ind. 209. time, and yet may have afterward ™ Lane v. State, ex rel., 27 Ind. 108. violated that duty in failing to pay In the case of Bales v. State, ex rel., out, or distribute, the funds so re- 15 Ind. 321, the court, in considering ceived. The second surety would be the question of the liability of the liable for failures of duty after he surety on a bond given at the time of was appointed, if not before, a ques- the release of a former surety, said: tion not presented; whether the same "The obligation rested upon the ad- resulted from a failure to collect and ministrator to reduce and properly reduce the assets, or to pay over, or dispose of the assets. If, as averred properly account for the same after in the answer, he had reduced to they should be so collected." money, and to his possession, all such ^ Lane v. State, ex rel., 27 Ind. assets, still the duty remained to ap- 108; State v. Barrett, 121 Ind. 92, 22 ply the same as the law directed. X. E. 969. The fear that he would not so apply 148 INDIANA PROBATE LAW. § IO7 leased by the proper court and a new bond given, is a sufficient answer on demurrer.®^ The notice required by the statute must be given, or there must be an appearance by the executor or administrator. § 107. Bonds of foreign executors, etc. — Whenever it shall appear to the court that such foreign executor or adminis- trator is bound, with sufficient surety in the state or country in which he was appointed, to account for the proceeds of any sale, in this state, of his decedent's real estate, for the payment of debts and legacies, and that by the laws of such state or country his sureties are liable for the proper accounting for such pro- ceeds, and a copy of such bond, duly authenticated, shall be filed in such court, no further bond shall be required of him here. If, however, he be not thus sufficiently bound, he shall give bond in said court as is required of executors or administrators appointed in this state.®" If it appears to the court that the bond given by a foreign executor or administrator in the jurisdiction of his appointment is sufficient to cover the proceeds of any sale of real estate made by him in this state, he will not be required to file any bond here.^^ " State, ex rel., v. Gregory, 88 Ind. ® Burns' R. S. 1908, § 2884. 110. ^Rapp V. Matthias, 35 Ind. 332. CHAPTER VII. LIABILITY OF ADMINISTRATORS, ETC. SUITS ON BONDS. § 108. Personal liability. § 115. By whom suits may be 109. Liability for conversion. brought. 110. Liability for waste. 116. Same — Continued. 111. To avoid liability officer must 117. Defenses to suits. be diligent. 118. Same — Right to counterclaim. 112. Suits on bonds — For what 119. Measure of damages in suit on causes. bond. 113. Same — Averments and evi- 120. Judgment without relief or dence. stay of execution. 114. Same — Duty as to surplus. § 108. Personal liability. — The giving of a bond by an ex- ecutor or administrator does not release him from personal Ha- biht}', the remedy given on the bond being merely cumulative. And there are many instances where the acts of an executor or administrator create a personal liability only ; such acts, not being done in their official character, create no liability on the bond. There is, however, always a personal liability of the executor or administrator where the remedy is properly upon his bond; but in such case the liability must be such as results from a wrongful exercise of his rightful authority as such officer. Contracts entered into by an executor or administrator, al- though apparently about matters properly connected with the set- tlement of the estate, cannot be regarded as in any sense the con- tracts of the decedent. They are necessarily the personal con- tracts of the executor or administrator, and he must be held per- sonally liable therefor, where he does not stipulate for exemption from such liability.^ Nor can sureties on the bond be held liable 'Long v. Rodman, 58 Ind. 58; 81 Am. St. 95. The case of Carter Hayes v. Shirk, 167 Ind. 569, 78 N. v. Thomas, 3 Ind. 213, was an action E. 653; De Coudres v. Union Trust of assumpsit brought against one Co., 25 Ind. App. 271, 58 N. E. 90, Chancey Carter, in his individual ca- 149 150 INDIANA PROBATE LAW. § I08 for assets which do not legally come into the hands of an execu- pacity, as acceptor of an order drawn on him by one McKeen. The accept- ance sued on was as follows : "Ac- cepted, to be paid when funds are re- ceived for the estate. C. Carter, ad- ministrator." The evidence in the case showed that funds to the amount of $300 belonging to the estate had, subsequently to the acceptance, come into the hands of said Carter, and that in August, 1850, payment of the acceptance was demanded of him and refused; that Carter had resigned as administrator before the commence- ment of the suit, and that administra- tors de bonis non had been appointed, and the court found for the plaintiff in the sum of $128. The Supreme Court affirmed the judgment, saying: "It seemed that 'if an executor or ad- ministrator promises, in writing, that in consideration of having assets, he will pay a particular debt of the tes- tator or intestate, he may be sued on his promise in his individual ca- pacity, and the judgment against him will be de bonis propriis.' " Mills v. Kuykendall, 2 Blackf. (Ind.) 47, was an action of assumpsit by the ap- pellee against Mills and Harness, as administrators, on a written agree- ment to pay money out of an estate. The question was whether the estate could be held on a promise made by the administrators. The court say, among other things, speaking of this action in assumpsit, that "The promise of administrators on a con- sideration originating subsequently to their intestate's death, cannot sustain such an action." And proceeding further, say : "The fatal objection to the count is, that the plaintiff in his suit goes altogether against the administrators in their representative character — against the estate of the intestate, when, by his own showing, that estate has nothing to do with his cause of action, and can in no way be affected by it." In Holderbaugh v. Turpin, 75 Ind. 84, 39 Am. Rep. 124, which was a suit brought against Holderbaugh on an agreement to submit certain mat- ters to arbitration, and that each party should, under certain condi- tions, pay one-half of the costs, the court say: "The mere fact that the matters submitted to arbitration grew out of an action prosecuted by the appellant as administrator, does not warrant the inference, as against the positive allegations of the complaint, that he bound himself only in the capacity of administrator." It is further said on page 87 in the same case : " 'The whole case shows, that the object of the plaintiff was to charge the estate of the deceased, by obtaining a judgment against the ad- ministrators de bonis intestati. The promise of administrators, on a con- sideration originating subsequently to their intestate's death, cannot sustain such an action.' * * * -phe un- dertaking of appellant was upon a consideration which accrued subse- quent to the death of the intestate, and was to do a thing which the in- testate's estate was not bound to do. It is impossible, in view of the au- thorities cited and the character of the undertaking itself, to regard it otherwise than as the promisor's original contract." The rule is thus stated in Jones on Conv., § 831 : "A person executing a conveyance in a representative capacity, such as ad- ministrator, guardian, or trustee, with the covenants for title usual in other § I08 LIABILITY OF ADMINISTRATORS. 15 1 tor or administrator, even though he has charged himself with the receipt of them." Independent contracts originating with, and purporting to be executed by, an executor or administrator, officially, for the sole benefit of the estate, and intended to bind only the estate, have been held void as to the estate, and personally binding on the offi- cer in the following cases : Upon an acceptance f upon covenants of title inserted by him in his conveyance of real estate;^ for the price of horses purchased for use in carrying on farming for and on an intestate's estate f for money borrowed to pay debts.*' It being said in one case : "The rule must be regarded as well settled that an executor or administrator is bound individually and not otherwise, by his promise to pay "as executor or admin- istrator," because he has no power to bind the estate by con- tract."' An administrator has no power, by his promise, to bind the estate of his decedent, unless the facts show his right to charge the estate, or that the consideration for such promise arose prior to the intestate's death. Otherwise such promise is only his per- sonal obligation.* Where property which does not belong to the estate of the de- cedent, or is not properly chargeable to the executor or adminis- deeds, is personally bound by them, Lynch v. Kirby, 65 Ga. 279; Dunne though he was under no obligation to v. Deery, 40 Iowa 251. make any of them, and had no au- ''Austin v. Munro, 47 N. Y. 360; thority to bind the estate he repre- Moody v. Shaw, 85 Ind. 88; Holder- sented by such covenants. baugh v. Turpin, 75 Ind. 84, 39 Am. = Mundorff v. Wangler, 44 N. Y. Rep. 124. Super. 495; Ennis v. Smith, 14 How. * Mills v. Kuykendall, 2 Blackf. (U. S.) 400, 14 L. ed. 472; Harker (Ind.) 47; Grimes v. Blake, 16 Ind. V. Irick, 2 Stock. (N. J.) 269. 160; Cornthwaite v. First Nat. Bank, ^ Perry v. Cunningham, 40 Ark. 57 Ind. 268; Moody v. Shaw, 85 Ind. 185. 88; Brown v. Forst, 95 Ind. 248. * Sumner v. Williams, 8 Mass. 162, "The law is quite well settled that 5 Am. Dec. 83 ; Osborne v. McMillan, while an executor or administrator 5 Jones (N. Car.) 109. may incur a personal obligation, he " Rich V. Sowles, 64 Vt. 408, 23 Atl. cannot, except as to expenses of ad- 723, 15 L. R. A. 850n. ministration, bind the estate by his •McFarlin v. Stinson, 56 Ga. 396; contracts with reference to the pay- ment of claims." 152 INDIANA PROBATE LAW. § I09 trator of such estate, comes into the hands of such executor or administrator, he cannot, by charging himself, in his official ca- pacity, with such property, make it a part of the assets of his decedent's estate, nor, by doing so, can he render such estate or himself, as executor or administrator thereof, liable for such property." Property so received becomes no part of the estate, and, if converted by the executor or administrator to his own use, cannot be recovered of the sureties upon his official bond; but such executor or administrator will be personally liable, for where an executor or administrator assumes to act outside of his power under the law, he is a wrong-doer and personally liable, in his natural capacity, to parties injured.^" § 109. Liability for conversion. — The duties of an execu- tor or administrator, in regard to the assets of an estate, are two- fold; he should reduce such assets to money and to possession as rapidly as possible, and then apply the same properly, as the law directs; and failing in either is a breach of his bond. Assets of an estate properly chargeable to the executor or ad- ministrator of such estate, and by him converted to his own use, may be recovered from him and the sureties on his official bond by a suit upon the bond ; and the complaint in such suit need not allege a demand for the property so converted prior to the ac- tion, for where an actual conversion of property is charged in the complaint it is not necessary to aver a demand also." And any misapplication of the property or trust fund in the hands of any executor or administrator is a conversion of such fund, and con- stitutes a suable breach of his bond.^- In case of such misappli- ' Rodman v. Rodman, 54 Ind. 444. failed to account for two thousand "Hankins v. Kimball, 57 Ind. 42. dollars interest collected by him ; (2) "Nelson v. Corwin, 59 Ind. 489; that he had wrongfully withheld dis- Jefifersonville &c. R. Co. v. Gent, 35 tribution for four years, though it Ind. 39; Ferguson v. Dunn, 28 Ind. was demanded; (3) that he had 58; Robinson v. Skipworth, 23 Ind. wrongfully delayed settlement of the 311 ; Spencer V. Morgan, 5 Ind. 146. A estate for four years. Held, that the complaint on an administrator's bond, complaint was good as to each of its on relation of the persons entitled to breaches. Stanton v. State, ex rel., distribution, assigned as breaches: 82 Ind. 463. (1) That the administrator had "Fleece v. Jones, 71 Ind. 340; § no LIABILITY OF ADMINISTRATORS. 153 cation, not only the executor or administrator, but any person who, with a full knowledge of the misapplication of the money of the estate, has received from the executor or administrator directly the money thus misapplied, will be held liable for the full amount thereof to any creditor of the decedent, or other person interested in the due administration of the estate and who is injured by such misapplication of the assets of the estate." § 110. Liability for waste.— A devastavit occurs whenever an executor or administrator wastes the assets of the estate, and consists of any act, omission or mismanagement by which the estate suffers loss, or a devastavit may result from the payment of claims which, by the exercise of proper diligence, the admin- istrator might have ascertained to be unjust and illegal. And any loss which results to an estate from the misapplication of funds by an executor or administrator must be made good. How- ever, the payment of a just and legal claim against an estate is not a devastavit or a wasting of the estate.'* The sureties upon the bond of an executor or administrator are liable for any waste or maladministration of the estate by such executor or administrator, at the suit of any person inter- ested in the estate.'^ A creditor has sufficient interest to permit State ex rel., v. Sanders, 62 Ind. thony v. Negley, 2 Ind. 211. Com- 562 30 Am Rep. 203. plaint on the general bond of an ad- »' Fleece V Jones, 71 Ind. 340; Rog- ministratrix averring the receipt of ers V Zook, 86 Ind. 237; Nugent v. two thousands dollars personal as- Laduke, 87 Ind. 482. sets, and the sale of real estate, and "Beardsley V. Marsteller, 120 Ind. for breach: (1) Failure to pay 319 22 N E 315 • Ayers v. Lawrence, money into court as ordered upon re- 59 \ Y 192 A promissory note ex- moval. (2) Conversion of money of ecuted and made payable to an ad- the estate to her own use {6) ministrator for a debt due the estate Waste in the payment in full of represented bv him is the property claims not preferred, the estate being of such estate, and his transfer of insolvent. (4) The wrongful pay- such note without consideration is a ment of a mortgage-debt secured on devastavit, or wasting of the assets land sold by her subject to the mor - of the estate. Thomasson v. Brown, gage. (5) Allowance of unjust 43 Ind. 203, distinguished. Krutz v. claims specified. Answer, that the ad- Stewart, 76 Ind. 9. ministratrix '-\^^;'^2Tt^^ f^. -Personsv. Crane,2Ind. 157;An- personal estate. Held, that the an 154 INDIANA PROBATE LAW. § IIO him to maintain such suit; but some of the earher cases^* hold that a suit could not be brought by a creditor of the estate upon the bond of an executor or administrator until after he had ob- tained a judgment on his claim against such executor or admin- istrator, or established judicially what is technically called a de- vastavit. The same rule was held to apply to the claims of lega- tees and distributees; but it is now held that the statute author- izing such suits dispenses with the necessity of having previously established such claims and the rule laid down in the earlier cases has been overruled. ^^ The common-law writ of devastavit is unknown in our probate practice. Mr. Woemer says, "that the term 'devastavit' is used in America as a convenient designation for such acts of the exec- utor or administrator as render him liable to the estate out of his own means, and has no other significance; and where such liability is found according to the principles of law applicable, the effect of the common-law remedy of devastavit is accom- plished by the falsification or surcharge of his account."^^ Any unlawful use by an executor or an administrator of the assets of the estate, by which such assets are lost to the estate, is waste on the part of the executor or administrator for which he and his sureties will be liable on his official bond." swer was good on demurrer, except breaches, failure to pay the creditor's as to nominal damages, and, there- claim, conversion of the assets, and fore, overruling the demurrer was failure to settle the estate in proper not available error. Held, that the time, neither other unpaid creditors fifth breach, if good, which is doubt- nor the administrator of the estate of ed, would only justify the recovery the deceased administrator were nec- of a nominal sum. Held, that under essary parties, nor was proof of a the complaint nominal damages only demand and failure to pay sufficient could be given, and for this only the proof of a conversion of the assets. Supreme Court will not award a new Embree v. State, ex rel., 85 Ind. 368. trial to the plaintiff. State, ex rel., v. " State, ex rel., v. Strange, 1 Ind. Cloud, 94 Ind. 174. 538; State, ex rel., v. Railsback, 7 "Governor v. Shelby, 2 Blackf. Ind. 634; State v. Hughes, 15 Ind. (Ind.) 26; Eaton v. Benefield, 2 104; Heady v. State, 60 Ind. 316; Blackf. (Ind.) 52; Hunt v. White, 1 Bescher v. State, 63 Ind. 302. Ind. 105. In a complaint on the bond '^ Woerner Am. Law Admin., § 534. of a deceased administrator, on the " State, ex rel., v. Johnson, 7 relation of a creditor, alleging, as Blackf. (Ind.) 529; Johnson v. Hed- §111 LIABILITY OF ADMINISTRATORS. 155 § 111. To avoid liability officer must be diligent. — The law demands of an executor or administrator diligence in the dis- charge of the duties of his trust; and for a failure to use such diligence he becomes liable in an action on his bond. If he is lenient or indulgent to the debtors of his decedent, and forbears to sue them, he acts at his peril, and incurs a personal liability which may result in a serious loss.-" An executor or administrator is required to be diligent and active in the discharge of his duties, and will not be entitled to credit for uncollected notes belonging to the estate, unless he can show to the satisfaction of the court that such notes could not have been collected with the exercise of proper diligence.-' A suit can be maintained on the bond of a deceased adminis- trator for the violation of any of the duties of his trust ; but his estate cannot be subjected to the costs of a suit unless he had been guilty of some default or neglect of duty. And if it shall appear that such administrator had paid all the debts of the estate and the costs of administration, and had paid out, in good faith, the residue of the estate in his hands to those entitled thereto, although he may have died before making a final report in the trust, his estate cannot be held further liable." An administrator appointed in this state is bound to use due diligence in collecting and accounting for claims due the estate here, notwithstanding the decedent, at the time of his death, was domiciled in another state and an administrator had been ap- pointed in such other state. And for a neglect of his duty here an administrator is liable on his bond.-^ An action will lie against an executor or administrator on his bond for a neglect to pay judgments against the decedent's estate, the estate being solvent and such executor or administrator hav- ing sufficient money in his hands, to pay such judgments. For rick, 33 Ind. 129, 5 Am. Rep. 191; ^Miller v. Steele, 64 Ind. 79; Con- Thomasson v. Brown, 43 Ind. 203. dit v. Winslow, 106 Ind. 142, 5 N. E. =" Miller v. Steele, 64 Ind. 79; 751. Condit V. Winslow, 106 Ind. 142, 5 "Lucas v. Donaldson, 117 Ind. 139, N E 751 19 N. E. 758. =^ State V. Gregory, 88 Ind. 110. 156 INDIANA PROBATE LAW. § 112 where the estate is clearly solvent, it is the duty of an executor or administrator to pay the debts against the estate in their regu- lar order as fast as the money of the estate comes into his hands." An administrator having sufficient funds in his hands arising from the personal property, after paying expenses of adminis- tration, last illness, etc., who fails to pay a mortgage debt against his intestate's real estate, but allows the mortgage to be fore- closed, is liable on his bond to the widow of the intestate for her interest in such real estate, even though she may have joined in the mortgage.-^ As to goods or chattels of the estate which have come into the hands of the executor or administrator, and have afterward been lost by fire, theft or other casualty, the rule of the common law was that the executor or administrator was liable for the loss; but it is the rule now that when goods are stolen or lost or de- stroyed by accident, fire or other casualty without the fault of the executor or administrator, he is not to be charged with the loss, but it must be borne by the estate. This rule, however, would not be followed in cases where the loss was of such a nature as might have been covered by an in- surance policy, and would have been so covered by a prudent man in the course of his own business, and there is money in the hands of the executor or administrator sufficient to purchase a policy therefor, for the duty of the executor in such case would be to insure the property against loss, to protect the estate.^*' § 112. Suits on bond — For what causes. — The statute pro- vides : Any executor or administrator may be sued, on his bond, by any creditor, heir, legatee, or surviving or succeeding executor or administrator, co-executor or co-administrator of the same estate, for any of the following causes, viz. : 1st. Failure to inventory the property of the decedent, to re- ^ Pence v. Makepeace, 75 Ind. 480 ; ^ Rubottom v. Morrow, 24 Ind, State V. Brown, 80 Ind. 425. 202, 87 Am. Dec. 324. '^ State V. Mason, 21 Ind. 171. § 112 LIABILITY OF ADMINISTRATORS. 157 turn inventories, appraisement bills, sale bills, reports, and ac- counts of sale according to law. 2d. Failure to pay money of the estate into court according to law. 3d. Failure to use due diligence in collecting claims due the estate. 4th. Want of reasonable care in taking solvent sureties to all obligations, to secure the purchase-money of any of the property of the decedent. 5th. Embezzling, concealing, or converting to his own use such property. 6th. Negligently permitting any of the property of the dece- dent to be injured. 7th. For committing any waste upon the real estate of the decedent, or knowingly permitting the same to be done, when such real estate is in his possession and control as such executor or administrator. 8th. Failure to render an account of his proceedings when- ever required by the court or the provisions of this act. 9th. Xon-compliance with any order of the court touching the estate. loth. Any other violation of the duties of his trust."' In a suit on an administration bond to recover assets it must be made to appear that the funds or property sued for belonged to the estate before any liability on the bond can be fixed. -^ And in cases where it is the duty of an executor or adminis- trator to apply funds in his hands without a demand, no demand is necessary before bringing suit on his bond.-^ The last clause in this statute, following the specific mention of breaches of the bond for which suits may be maintained, is broad enough to cover all and any other breaches or dereliction of duty on his part than those particularly named. ^^ Where an administrator pays money of the estate in his hands on the general debts of the decedent, not leaving enough in his ^Burns' R. S. 1908, § 2981. ^ Pence v. Makepeace, 75 Ind. 480; ^ Cullen V. State, 28 Ind. App. 335, Nelson v. Corwin, 59 Ind. 489. 62 N. E. 759. =" Stanton v. State, 82 Ind. 463. 158 INDIANA PROBATE LAW. § 112 hands to pay preferred claims and liens, a suit will lie on his bond for the benefit of claimants whose claims should have been paid first.^^ Before judgment can be had in a suit brought under the first clause of this statute, it must be alleged and proved that the prop- erty the executor or administrator is charged with neglecting to inventory, was property wliich had come to his knowledge.^" A suit will lie upon the bond of an administrator who accepts sale notes executed by insolvent persons, and the amount of such notes, including interest, may be recovered, but after judgment he has the right to have such notes turned over to himself. '^^ As has been shown heretofore, the general administration bond secures only the proceeds of the personal property of the decedent and the proceeds of lands directed by the will to be sold. For any misapplication of the fund arising from the sale of real estate resort must be had to the special bond given to secure the proceeds of such sale.^* Nor will the sureties upon the general administration bond be liable for rents and profits derived from the decedent's real estate. The administrator is not entitled to the rents and profits of land which accrue after the death of the decedent. These belong to the heirs.^^ It is only where the heir or devisee is not present and there is no one to take possession of or care for a decedent's real estate that an administrator or executor is authorized to rent the real estate, and in such case he must account for the rents he collects.^® In case of his misappropriation of such rents it is not clear from the statutes just what bond would be liable. It is probable ''State V. Brown, 80 Ind. 425. Hendrix v. Hendrix, 65 Ind. 329; '= State V. Scott, 12 Ind. 529. First Nat. Bank v. Hanna, 12 Ind. '"Lindley v. State, 116 Ind. 235, 18 App. 240, 39 N. E. 1054; Trimble v. N. E. 45. Pollock, n Ind. 576; McClead v. '"State V. Barrett. 121 Ind. 92, 22 Davis. 83 Ind. 263; Evans v. Hardy, N. E. 969; Hankins v. Kimball, 57 16 Ind. 527. Ind. 42. '"Burns' R. S. 1908, §§ 2895, 2896, ''Comparet v. Randall, 4 Ind. 55; 2935, 2936. § 113 LIABILITY OF ADMINISTRATORS. 159 the court might order him to make a special bond to cover such rents." An executor or administrator who deposits money of the estate in bank in his individual name will be held liable on his bond for such deposit on a failure of the bank. The rule is that if one holding a fiduciary relation makes use of the trust funds or com- mingles them with his own that he shall account for such funds together with any profits realized, and this rule will not be re- laxed in favor of sureties.^® In a suit upon a bond of an administrator something more palpable than a mere delay in the payment of a claim must be proven to make out a case of conversion. The administrator being the lawful custodian of the funds more than a demand and a refusal to pay the claim must be shown in such a case.^® If an administrator has absented himself from the state so that service cannot be had upon him, suit may be brought against the sureties on his bond alone." § 113. Same — Averments and Evidence. — In a suit upon the bond of an administrator, assigning for breaches thereof that the administrator had failed and refused to account for in- terest collected by him on moneys due the estate, that he had wrongfully and unjustly withheld distribution from the heirs, that he wrongfully and unjustly delayed the settlement of the estate, is sufficient to authorize a recovery of at least nommal damages.*^ When an administrator resigns his trust it is his duty to pay the money in his hands belonging to the estate into court or to his successor in the trust; failing so to do, an action will lie against him upon his bond, and no demand is necessar}^ previous ^ State V. Barrett, 121 Ind. 92, 22 and had, for that cause, been re- N. E. 969. moved, and an administrator de bonis »* Dowling V. Feeley, 72 Ga. 557. non appointed. No citation to settle "Embree v. State, 85 Ind. 368. could avail." See also Graham v. *° State, ex rel., v. Porter, 9 Ind. State, 7 Ind. 470, 65 Am. Dec. 745. 342. In this case it is said : "It is " Stanton v. State, ex rel., 82 Ind, shown that the administrator had left 463. the state with money in his hands, l6o INDIANA PROBATE LAW 113 to the commencement of such suit." Formerly an administrator was not authorized to pay money of the estate into court, and could not be required to do so even by an order of court." But now, by statute, it is made his duty to do so." An administrator de bonis non, who has obtained a judgment against his predecessor and his sureties for conversion by the former of assets of the estate, may, without proceeding to collect such judgment from the sureties, maintain an action to set aside a conveyance, which the defaulting administrator had fraudu- lently made, of land purchased with trust funds. ^^ In a complaint on a bond averred to have been executed by order of the court, it is not necessary to set out the order, as conformity to all the requirements of the law will be presumed in favor of the court making the order,^" nor is it necessary to show the removal of an administrator for malfeasance before suit is brought upon the bond.*' Where suit on an administrator's bond is brought by heirs, who fail to allege in their complaint that they are heirs of the intestate, such omission is cured by a verdict in their favor, where the record of the pleadings and evidence disclose the fact of their heirship; and the final report of the administrator showing the plaintiffs to be heirs and entitled to distribution, is sufficient proof of their heirship.** It is a sufficient averment of a breach in a suit upon the bond of an executor or administrator that he had assets of the estate in his possession and under his control, which he converted to his own use after the execution of the bond.*® In an action by an administrator on the bond of a former ad- "^Lane v. State, ex rel., 27 Ind. 108. *' Duffy v. State, 115 Ind. 351, 17 "Jenkins v. Lemonds, 29 Ind. 294. N. E. 615; Harvev v. State, 123 Ind. "Burns' R. S. 1908, § 2924. Set- 260. 24 N. E. 239' tlements made by executors or ad- *^ Owen v. State, ex rel., 25 Ind. ministrators on resigning their trusts 371. need not be set aside before suits will *' Owen v. State, ex rel., 25 Ind. lie on their bonds. Parsons v. Mil- 371. ford, 67 Ind. 489; Lang v. State, ex '^ Beal v. State, 77 Ind. 231. rel., 67 Ind. 577. See Sanders v. "Owen v. State, 25 Ind. 371. Loy, 61 Ind. 298. §114 LIABILITY OF ADMINISTRATORS. l6l ministrator to recover money received by such administrator from a sale of the decedent's real estate, the record of such pro- ceeding is admissible in evidence. Parol evidence is also ad- missible to prove the amount of money actually received by the administrator from the sale.^*^ An executor's or administrator's current account is prima facie correct, and in a suit upon his bond is evidence of the amount in the hands of such officer at the time the account was filed.^^ The final settlement of an executor or administrator cannot be opened up or questioned in a suit upon his bond for the reason that so long as it remains unappealed from and has not been set aside such final settlement is conclusive, except in cases of fraud or mistake.'^" In such suits the reports of the administrator which have been filed, but not yet acted upon, are competent evidence against the administrator, as admissions in relation to the disposition and management of the assets of the estate.^^ § 114. Same — Duty as to surplus. — The surplus in the hands of an administrator remaining for distribution after final settlement of the estate, which remains unclaimed for two years after the filing and approval of the final report of such adminis- trator, escheats to the state, and an administrator who then fails or refuses to pay such surplus in his hands into the proper county treasury for the use of the state becomes liable to the state, upon his bond, for that amount." In an action against an administrator, if, on the pleas of non- " State, ex rel., v. Lindley, 98 Ind. " State, ex rel., v. Hughes, 15 Ind. 48. In this case the court says: "The 104; Reed v. Reed, 44 Ind. 429; Hol- appellant had the unquestioned right land v. State, ex rel., 48 Ind. 391. to prove by parol the amount of Settlements made by an executor or money received by the administrator administrator cannot be set aside or upon the sale of such land. This opened up except by a direct proceed- may have been much more than was ing. Barnes v. Bartlett, 47 Ind. 98. shown by his report, and, if so, there " Beal v. State, 11 Ind. 231. was probably no other way by which " Fuhrer v. State, ex rel., 55 Ind. it could be shown. The appellant was 150; State, ex rel., v. Taggart, 88 Ind. not concluded by the report." 269. " Lane v. State, ex rel., 27 Ind. 108. 11— PRO.L.A.W. l62 INDIANA PROBATE LAW. § I 1 5 assumpsit and plene administravit, the finding is against the ad- ministrator, the amount of the assets remaining in his hands unadministered should also be found. '° If by mistake an item charged against an administrator be not litigated in a suit upon his bond, it may be recovered in another suit upon the same bond.'^^ It is the duty of an administrator to pay the debts of his in- testate, and so long as any indebtedness exists a creditor cannot complain that the administrator does not pay the funds of the estate into court.'*' It is made the duty of an administrator to account to the court for all the assets which come to his hands, and, if upon final set- tlement, any such assets remain undisposed of. it is his duty to pay such surplus as the court may direct and failing to do so there is a breach of his bond for which suit will lie. § 115. By whom suits may be brought. — An action on the bond of an executor or administrator must be brought upon the relation of some person beneficially interested in the estate, and the complaint should show the nature of such interest.^^ The statute provides that such suit may be brought by and on the relation of any such creditor, heir, legatee, surx'iving or suc- ceeding executor or administrator, co-executor or co-adminis- trator; but no costs shall be taxed, in such proceeding, against the estate, unless it be brought by such surviving or succeeding ex- ecutor or administrator or co-executor or co-administrator.^'* "King V. Anthony, 2 Blackf. (Ind.) Rounds, 59 Ind. 116, it is said: "Un- 131; Gaston v. Hiatt, 5 Blackf. (Ind.) der the provision of the code above 44. cited, it seems to us, that this action '^ State, ex rel., v. Brutch, 12 Ind. was improperly brought; that the ap- 381. pellee could neither bring nor main- ■" State, ex rel., v. Lemonds, 29 Ind. tain an action in his own name on ^^T- the bond in suit, and that the action ^ Songer v. Manwaring, 1 Blackf. could only be maintained on said (Ind.) 251; Burns' R. S. 1908, § 253; bond in the name of the state of In- Eaton V. Benefield, 2 Blackf. (Ind.) diana, as plaintiff, on the relation of 52; Nicholson v. Carr, 3 Blackf. the proper trustee of the trust estate, (Ind.) 104; Neal v. State, 49 Ind. 51 ; and for the use of the persons 'injured Yater v. State. 58 Ind. 299; Potts v. by the action' of the former trustee." State, 65 Ind. 273. In Jackson v. °' Burns' R. S. 1908, § 2982. § 115 LIABILITY OF ADMINISTRATORS. 1 63 A devisee may maintain an action upon the bond of an execu- tor or administrator for a conversion; and in case of the insol- vency of the principal, and the death of the surety, in such bond, the right of action is against the personal representatives of the deceased surety.^*' A suit upon the bond of an administrator may be maintained by the heirs of the intestate; and such suit may be brought against one or all of the obligors upon such bond, at the option of the plaintiff.*'^ A judgment recovered in such action is not a personal one in favor of the heirs suing, but accrues to the benefit of the entire estate. At common law a suit would not lie on the relation of an ad- ministrator de bonis non against a former administrator or ex- ecutor on his bond, or against his personal representatives after his death, for any property of the decedent that such predecessor may have converted or wasted."' And this rule of law formerly prevailed in this state.®^ But such suit is now provided for by the statute under consideration.®* In a suit upon the bond of an administrator, brought on the relation of a creditor, it is not necessary to make other unpaid creditors, nor the administrator of the defaulting administrator, parties to the action.*'^ In such case the better practice would be to appoint an administrator de bonis non, in the place of the de- faulting deceased former administrator, and have the action brought in his name, and in this way avoid complications which might otherwise arise, where the creditors, only, sue upon the bond of such deceased administrator. Where a suit is brought by a creditor for a failure, upon the part of the administrator, to pay his claim, proof of a demand "Nelson v. Corwin, 59 Ind. 489. Blackf. (Ind.) 167; State, ex rel., v. "State, ex rel., v. Bennett, 24 Ind. Gooding, 8 Blackf. (Ind.) 567; Gra- 383; Burns' R. S. 1908, § 271. ham v. State, ex rel, 7 Ind. 470, 65 •-Hagthorp v. Hook, 1 Gill & J. Am. Dec. 745. (Md.) 270; 3 Bacon's Abridgement, "^ Myers v. State, ex rel, 47 Ind. 19, 20. 293. "Anthony v. McCall, 3 Blackf. " Embree v. State, ex rel, 85 Ind. (Ind.) 86; Young v. Kimball, 8 368. l64 INDIANA PROBATE LAW. § 1x6 and failure to pay is not sufficient proof of a conversion of the assets.*"' The widow is an heir within the meaning of the statute and may maintain an action upon the bond of an administrator of her deceased husband for the recover)^ of the value of the personal property allowed her by law."' Proof that an administrator paid the widow more than she was entitled to, or paid some claims in full when the assets of the estate were insufficient to pay all, will not sustain an allegation that he converted the money of the estate to his own use.*^^ § 116. Same — Continued. — Only those who have been in- jured by a breach of an administrator's bond can maintain a suit upon such bond, and when such suit is brought by the heirs, or next of kin, it must appear that there has been a final settlement of the estate, a sum due them as heirs or distributees, and a re- fusal of the administrator to properly account for and pay over the same.®* Sureties upon such bond have no such interest in the estate as will entitle them to bring suit upon the bond of their principal for a failure on his part to perform its conditions.^*' An administrator de bonis non may maintain an action against the sureties of the former administrator to recover an admitted •^ Embree v. State, ex rel., 85 Ind. " State v. Mason, 21 Ind. 171 ; 368. In this case it is said: "When Walker v. Prather, 3 Ind. 112. personal property has been tortiously '^ State, ex rel., v. Lemonds, 29 Ind. taken, or unlawfully detained, a de- 437. mand for its possession by the owner, *" Neal v. Becknell, 85 N. Car. 299 ; supplemented by a refusal to return Peveler v. Peveler, 54 Tex. 53 ; Weihe or deliver up the property, is usually v. Stratham, 67 Cal. 84, 7 Pac. 143. accepted as sufficient evidence to A surety upon the bond of an exe- prove a conversion of the property cutor, who is also residuary legatee, so taken or detained; but more than is released by the act of a legatee a demand and a refusal to pay must who, without the surety's assent or be shown, to establish a conversion procurement, accepts the note of the in a case like this, where the adminis- executor in settlement of the amount trator is the lawful custodian of the of the legacy. Durfee v. Abbott, 50 assets, and where no specific article Mich. 479, 15 N. W. 559. of property is sued for." '" Bunnell v. Municipal Court, 9 R. I. 189. § Il6 LIABILITY OF ADMINISTRATORS. 1 65 or proved balance due from such administrator, without first re- covering a judgment against the principal.''^ Sureties on an administrator's bond cannot protect themselves by showing that the bond was not approved. '^^ In a suit against one, who is administrator, as a surety on the bond of his deceased predecessor, he cannot be held liable for money which came into his hands as such successor.^^ A failure, on the part of an executor or administrator with the will annexed, to pay a legacy will render him liable to a suit on his bond, and such suit may be maintained without any previous order of court directing the payment of such legacy, nor is it necessary that the executor should be removed prior to the bring- ing of such suit.'* Neither administrators nor executors can be held liable for the acts of mismanagement or omission of co-executors or adminis- trators in matters with which they had nothing to do and are in no wise culpable; and each is liable only for the assets of the estate which came into his hands." But where mismanagement of a certain part of the estate is shown, and it appears that by agreement of all the executors the business of this particular part should be attended to by one of them, they will all be held liable for such mismanagement.'*^ ^ Badger v. Jones, 66 N. Car. 305 ; done some act which the law consid- Wickham v. Page, 49 Mo. 526; ers as equivalent to an admission that Franklin County v. McElvain, 5 Ohio the assets were in their hands and 200. power, and culpably and negligently "Mundorf v. Wangler, 44 N. Y. parted with." Hall v. Boyd, 6 Pa. Super. 495. St. 267. Nor does the fact that the "Poeple V. Allen, 86 111. 166. executors are trustees as well as '* Gould V. Steyer, 75 Ind. 50; executors make any difference as to Heady v. State, ex rel., 60 Ind. 316; their liability for each other. Banks Owen V. State, ex rel., 25 Ind. 371. v. Wilkes, 3 Sanf. Ch. (N. Y.) 99; "Call V. Ewing, 1 Blackf. (Ind.) Ormiston v. Olcott, 84 N. Y. 339. 301; Ray v. Doughty, 4 Blackf. '' .-\llen v. Shanks, 90 Tenn. 359, (Ind.) 115; Davis v. Walford, 2 Ind. 16 S. W. 715. An executor who al- 88; Braxton v. State, 25 Ind. 82; lowed his co-executors to retain State V. Wyant, 67 Ind. 25. "They funds of the estate for a long time are liable, personally and individual- without seeing to their proper invest- ly, no further than assets have come ment is responsible for the loss of into their hands, or where they have such funds. Hays v. Hays, 3 Tenn. l66 INDIANA PROBATE LAW. § Il6 The refusal of a defaulting administrator to pay to sureties upon his bond, on their demand, money which they have been compelled to pay in settlement of his defalcation, does not ren- der such administrator guilty of embezzlement. As such sure- ties they are interested that he shall act honestly, but they have no interest in the estate. His refusal to repay to them the amount which they have been compelled to pay in settlement of his de- falcations is a moral and reprehensible wrong, but it is not, under the statute, a punishable crime. ^^ An action by an administrator de bonis non on a bond of his predecessor will lie, when the complaint shows that such former administrator received money from the sale of real estate of his intestate for which he has refused to account, and that he still has the money in his hands.''* The only right of action given to an administrator de bonis non for a conversion of any part of the assets of the estate by his predecessor is the one given by this statute under considera- tion, an action on the official bond of such predecessor. He can- not sue his predecessor, or, in case of his death, his personal rep- resentative, for any part of the estate sold, converted or wasted by him.'® And in a suit by such administrator he need only aver that he is administrator, and his right to sue cannot be questioned except by a plea in abatement denying the right. ^° This statute has been so frequently construed, that the objec- tion that an administrator de bonis non cannot prosecute actions on the bonds of his predecessor in the trust is without founda- tion.'^ Ch. 88. See also Wood v. Brown, 34 " Ormes' Estate v. Brown, 22 Ind. N. Y. 337; Weigand's Appeal, 28 Pa. App. 569, 52 N. E. 1005. St. 471. One executor allowed his *" Michigan Trust Co. v. Probasco, co-executor to act as receiver without 29 Ind. App. 109, 63 N. E. 255. supervising him with due care. He " Graham v. State, 7 Ind. 470, 65 was held responsible for the misman- Am. Dec. 745; State v. Porter, 9 Ind. agement of the co-executor. Cress- 342 ; Myers v. State, 47 Ind. 293 ; Day man's Estate, 2 Phila. (Pa.) 76. v. Worland, 92 Ind. 75; Lucas v. "State V. Adamson, 114 Ind. 216, Donaldson, 117 Ind. 139, 19 N. E. 16 N. E. 181. 758; Sheeks v. State, 156 Ind. 508, 60 ^'Lindley v. State, 115 Ind. 502, 17 X. E. 142. N. E. 611. § 117 LIABILITY OF ADMINISTRATORS. I67 § 117. Defenses to suits. — An answer by an administrator to a complaint on his bond in an action brought by a creditor for a failure to pay his claim, that there were no assets of the estate in the hands of such administrator out of which to pay such claim, is a good answer in bar of the action.^' A paragraph of answer to a complaint on an administrator's bond alleging that he has fully administered the estate of the decedent, and all the rights, credits, moneys and effects of said estate which came into his hands to be administered, and that the estate is indebted to him in a sum named, shows that he has fully administered and properly paid out and accounted for the assets which came into his hands as administrator; but the an- swer is subject to a motion to make more specific." To a complaint on an administrator's bond against the sure- ties, an answer that before breach the sureties were released by order of the proper court and that a new bond was given, is held sufficient on demurrer.*** And where an administrator has made a sale of his intestate's real estate, and afterward a suit is brought upon his general bond, the complaint in such action alleging, for breaches of such bond, failure to pay over money, conversion, waste, etc., with- out specifying to which fund such breaches apply, if good at all, is only good for the recovery of nominal damages; and an an- swer to such complaint, that the administrator had duly admin- istered all the personal property belonging to the estate, is suf- ficient, for the reason that if all the personal estate was duly ad- " State V. White, 33 Ind. 298. liad not had the balance due the " State V. Barrett, 121 Ind. 92, 22 estate in his possession or control, N. E. 969. had not concealed it, and had no "State V. Gregory, 88 Ind. 110; power to restore it nor means with State, ex rel., v. Lemonds, 29 Ind. which to secure its restitution, was 437. In a prosecution against a re- held to constitute a good defense, the moved executor for' retaining and prosecution being treated as brought concealing assets of the estate, an under §§ 30 and 161 of the act con- answer showing that whatever wrong cerning the settlement of decedents' had been done was fully accomplished estates (2 R. S. 1852, pp. 254, 285). before the defendant's removal from Phelps v. Martin, 74 Ind. 339. his trust; that since his removal he 1 68 INDIANA PROBATE LAW. § Il8 ministered, the condition of the general bond was fully per- formed.^^ It is no defense in an action on the bond of an executor or administrator against the sureties for such sureties to show that such executor or administrator was solvent for a lonsr time after the receipt of the funds alleged to have been converted by him, and that the amount could have been recovered then by prompt action.®* § 118. Same — Right to counterclaim. — An administrator has the right to apply any money in his hands belonging to the estate to the liquidation of claims against such estate, and is en- titled, in his account with the estate, to credit for all such pay- ments. Such payments can be pleaded as a counterclaim in a suit upon the bond of such administrator." An administrator has the right to deduct from the share of a distributee, in his hands, the amount of a debt due from the dis- tributee to the estate of the decedent. This is usually termed the right of set-off, but the use of the term in such case is inaccurate. The court says : "The ground upon which an administrator is entitled to retain so much of the distributive share of a dis- tributee as will satisfy a debt due from the latter to the estate is, that the heir or distributee makes a demand upon the adminis- trator in respect to assets in his hands as administrator, and the just and equitable answer in such a case is that the person mak- ing the demand has already in his hands assets belonging to the estate in excess of the amount of the distributive share which he is demanding."^® A note owing to the estate by the judgment plaintiff and due and unpaid can not be pleaded as a set-off, by the administrator, in such an action.*^ ^ State V. Cloud, 94 Ind. 174. Mellett, 121 Ind. 585, 23 N. E. 95, 7 '"Owen V. State, 25 Ind. 371. L. R. A. 231n; Woerner Law Admin., *' State V. Barrett, 121 Ind. 92, 22 § 564; Waterman on Set-off, § 210; N. E. 969. Fisciis v. Fiscus, 127 Ind. 283, 26 ''Fiscus V. :Moore, 121 Ind. 547, 23 N. E. 831. N. E. 362, 7 L. R. A. 235 ; Koons v. '' Pence v. Makepeace, 75 Ind. 480. 119 LIABILITY OF ADMINISTRATORS. 1 69 The right of set-off includes any sum due the estate on account of surety debts existing at the decedent's death. ®° The cases differ, though the weight of authority favors the right of set-off, as to whether an administrator has any prior right to demand payment of a debt due from an insolvent heir to the intestate out of the land inherited by such heir, either in his hands, or that of his vendee or an attaching creditor of the heir. In this state it has been held that for purposes of equalization among the heirs, there exists a lien and a right to have such por- tion as goes to the heirs, whether real or personal property, ap- plied to the payment of a debt due from the heir to the estate. Realty being on the same footing as personalty, the lien is in fa- vor of the estate being paramount to the rights of an alienee of the indebted heir.®^ § 119. Measure of damages in suit on bond. — The measure of damages in all such suits shall be the value of the property converted, destroyed, embezzled, or concealed; the injury sus- tained by the estate, or any person interested therein; interest on money retained; such exemplars- damages as the court or jur>' trying the case may be willing to give, and ten per centum on the whole amount assessed.*" As a measure of damages certain items are imperatively re- quired by this statute to be taken into consideration in fixing the amount of the recovery in an action upon the bond of an executor »« T.', 'Koons V. Mellett, 121 Ind. 585, 23 495. The judgment must be for the N. E. 95. 7 L. R. A. 231n: Taylor v. entire liability on the bond, and the Jones, 97 Ky. 201. 30 S. W. 595. money collected and brought into "New V. Xew. 127 Ind. 576, 27 X. court for distribution. Moody v. E. 154: Oxsheer v. Nave, 90 Tex. State, ex rel., 84 Ind. 433. The 10 568, 40 S. W. 7, 37 L. R. A. 98; per cent, penaltj- can only be added Hopkins V. Thompson. 73 Mo. App. when money or property- has been 401 ; Streety v. McCurdy. 104 Ala. converted, destroyed, embezzled or 493. 16 So. 686. concealed. Buchanan v. State, ex -^Burns' R. S. 1908, § 2982. Ten rel., 106 Ind. 251, 6 N. E. 614. As per cent, should be added to the against sureties the damages cannot whole amount of damages assessed, exceed the penalty of the bond. Potter V. State, ex rel., 23 Ind. 607; Meadows v. State, ex rel., 114 Ind- Baldridge v. State, ex rel., 69 Ind. 5:^7. 17 X. E. 121. 166: Stroup v. State, ex rel.. 70 Ind. 170 INDIANA PROBATE LAW. S 120 or administrator. Upon the aggregate value of the property con- verted, destroyed, embezzled, or concealed, or money retained, interest should be computed at the legal rate, and to the sum thus ascertained ten per cent, should be added. In addition to these sums, the court or jury is invested with the discretionary power to assess exemplar)- damages. The statute does not impose a limit upon the discretion conferred, but it should be construed to mean a sound legal discretion, the exercise of which, in a proper case, is to be governed by the facts and circumstances at- tending each case. If exemplary damages are assessed the amount should be added to the aggregate amount before the ten per cent, is added, as that is to be added to the whole amount assessed.®^ § 120. Judgment without relief or stay of execution. — No stay of execution or benefit of valuation or appraisement laws shall be allowed on a judgment on such bond as to the property of the principal; and all damages so collected shall, by the officer collecting the same, be paid into the proper court, when, after deducting and paying to the relator in such suit a reasonable com- pensation for his services therein, it shall be disposed of accord- ing to the laws regulating the distribution of the property of the decedent.®* It would seem from the reading of this statute that a judg- ment on such bond, when taken against both the principal and surety therein, is non-repleviable and without relief, only as to the principal in such bond, but an act was approved December 21, 1858, amending § 429, page 133, vol. 2, R. S. 1852. The section as amended reads as follows : "Hereafter all judgments recovered against any sheriff, constable or other public officer, administrator, executor or any other person or corporation, or the sureties of any or either of them, for money collected or received in a fiduciary capacity, or for a breach of any official duty, or for money or other article of value held in trust for another, shall be ^' Colburn v. State, ex rel., 47 Ind. Ind. 166 ; Goldsberry v. State, ex rel., 310; Raid v. State, ex rel., 58 Ind. 69 Ind. 430. 406; Baldridge v. State, ex rel., 69 "Burns' R. S. 1908, § 2983. § I20 LIABILITY OF ADMINISTRATORS. 1 7^ collectible without stay of execution or benefit of the valuation or appraisement laws of this state."*' These statutes construed together certainly authorize a non-repleviable judgment against both principal and surety upon the bond of an executor or ad- ministrator, and allow neither the benefit of valuation and ap- praisement laws; and the proceeds of such judgment belong to the estate, and must be retained in court until all the indebted- ness of the estate is paid, and the surplus, if any, shall be dis- tributed to those entitled thereto."" No stay of an execution shall be allowed upon any judgment recovered against any officer, person or corporation, or the sure- ties of any of them, for money received in a fiduciary capacity or for a breach of any official duty. The clerk shall issue exe- cutions upon such judgments forthwith, returnable in ninety days and indorsed not repleviable, and it shall be so ordered in the judgment.*^ '^ Burns' R. S. 1908, § 604 ; Bunnell is not afifected by the fact that the V State, 15 Ind. 145. clerk had so misnamed the parties in - Moore v. State, ex rel., 49 Ind. the order-book and dockets that they •^SS- Owen v. State, ex rel., 25 Ind. would not indicate the pendency of 371 ' The priority of a lien to which such suit, if the mortgagor was not a judgment on an administrator's misled thereby. Day v. Worland, 92 bond is entitled, over a mortgage ex- Ind. 75. ecuted after the beginning of the suit, " Burns' R. S. 1908, § 741. CHAPTER VIII. REVOCATION OF LETTERS AND REMOVAL. i 121. Letters not subject to collateral attack. 122. Authority, how terminated. 123. Right of resignation. 124. Who may apply and for what causes. 125. Same — Statute construed. 126. Where letters have been issued out of statutory order. 127. Causes for removal — Neglect to file inventory. 128. Same — Drunkenness and im- becility. 129. Same — For failure to give bond, or to account. 130. Same — Non-residence. 131. Same — Effect of marriage. § 132. Application for removal — No- tice, etc. 133. Same — Notice by publication. 134. Who may move for revocation or removal. 135. Defenses to application. 136. Hearing on application — No jury. 137. Same continued. 138. The hearing a summary pro- ceeding — No change of venue. 139. Judgment, costs, appeals, etc. 140. Effect of removal. 141. Intermeddling and embezzle- ment after removal. 142. Acts legalized. § 121. Letters not subject to collateral attack. — Where letters have been issued by a court ha\ing jurisdiction for that purpose, such letters, so long as they remain unrevoked, are con- clusive evidence of the authority of the executor or adminis- trator to whom they are granted, and they cannot be collaterally impeached even for fraud,^ in one case it being said : "No prin- ciple of our jurisprudence is more firmly established than the 'Simmons v. Saul. 138 U. S. 439, 34 L. ed. 1054, 11 Sup. Ct. 369; Fer- guson V. State, 90 Ind. 38; Michigan Trust Co. V. Probasco, 28 Ind. App. 109, 63 N. E. 255; Sadler v. Sadler, 16 Ark. 628; Johnson v. Johnson's Estate, 66 Mich. 525, 33 N. W. 413; Mills v. Herndon, 77 Tex. 89, 13 S. W. 854. Want of authority of an adminis- trator to maintain an action because of defect in his bond for want of proper sureties cannot be urged as a defense to an action because it is a collateral attack on the judgment of the probate court. Beresford v. American Coal Co., 124 Iowa 34, 98 N. W. 902. 172 § 121 REVOCATION OF LETTERS AND REMOVAL. 1 73 following: 'Letters of administration make full proof of the party's capacity until they be revoked. They must have their effect, and the regularity of the proceedings on which they are is- sued cannot be examined collaterally.' "^ From the fact that until letters are revoked by a court of com- petent jurisdiction, they cannot be questioned, it follows, there- fore, that the acts of an executor or administrator under the letters are valid even though the probate of the will or the grant of letters was erroneous, or they were obtained upon fraudulent representations, or even under a forged will.^ The rule is differ- ent if the letters are granted by a court having no jurisdiction to issue them. Such letters are void and give no validity to acts done under them. An appointment so made is a nullity.'' Where the court has granted letters of administration, the legal presumption exists that the action of the court was right, and the burden is upon those assailing such right to prove that there was no necessity for administration, or that the grant of letters was wrongful, or erroneously made.'' - Duson V. Dupre. 32 La. Ann. 896. cninty. Zeigler v. Storey, 220 Pa. 471, The appointment of an administra- 69 Atl. 894. tor cannot be collaterally attacked * Holyoke v. Haskins, 5 Pick, because the petition for administra- (Mass.) 20, 16 Am. Dec. 372; Ex tion fails to allege the death of the parte Barker, 2 Leigh (Va.) 719. intestate. Manning v. Leighton, 65 The appointment of an administra- Vt. 84, 26 Atl. 258, 24 L. R. A. 684n. tor by a court of competent jurisdic- "Schluter v. Bowery Sav. Bank, 117 tion, is not open to collateral attack N. Y. 125, 22 N. E. 572, 15 Am. St. in a suit by the administrator to col- 494. 5 L. R. A. 541n ; Kittredge v. lect assets, on the ground that it was Folsom. 8 N. H. 98; Smith v. Smith, void for want of assets in the state. 168 111. 488, 48 N. E. 96; Reed v. Jordan v. Chicago &c. R. Co., 125 Reed. 91 Ky. 267, 15 S. W. 525; Wis. 581, 104 N. W. 803, 110 Am. St. Franklin v. Franklin, 91 Tenn. 119, 18 865, 1 L. R. A. (N. S.) 885. S W 61 "Bowen v. Stewart, 128 Ind. 507, The appointment of an administra- 26 N. E. 168, 28 N. E. 1Z; Wallis v. tor upon a finding of the decedent's Cooper, 123 Ind. 40, 23 N. E. 977. death and the possession of property The judgment of a probate court within the county is conclusive of the granting letters to a widow will be authority of the court to make the upheld, although the sole assets of the appointment until set aside on direct estate consisted of a claim agamst a attack, although a will is found and railroad company for causing the subsequently probated in another death of her husband. Missouri Pac. 174 INDIANA PROBATE LAW. § 122 § 122. Authority, how terminated. — Letters having been issued out of the proper court, the authority of an executor or administrator under them may be extinguished in several ways. It may be terminated by the voluntary act of the executor or administrator; that is, by his resignation. The death of the officer ends his authority, although neither death nor resignation relieves an executor or administrator or their estates from the obligation to account for the estate in their hands. The authority of such an officer is, of course, terminated upon a final settle- ment of the estate entrusted to him and his discharge by the proper probate court. If the letters granted are voidable for any reason, the court making the appointment may, upon the proper application and showing, revoke such letters and remove the executor or adminis- trator; or the trust may be terminated, so far as the particular individual is concerned, by his removal by the court for any of the causes set out in the statute. It is said by one writer that "Where the probate court has once regularly conferred the ap- pointment, it cannot remove the incumbent except for causes recognized by the law as sufficient, and in the manner authorized by statute. But it is an inherent power in every judicial tribunal to correct an error which it may have committed, when no posi- tive rule of law forbids it," and that, therefore, it is the duty of the court, upon the appHcation of any party in interest, or even upon the court's own motion, to annul or revoke letters which have been erroneously granted.^ Where letters of administration are issued in a county where they are not authorized by statute, the court in which they are issued may, upon its own motion, institute proceedings to set them aside. ^ § 123. Right of resignation.— At common law neither an executor nor an administrator who had accepted the office and R. Co. V. Lewis, 24 Neb. 848, 40 N. Ind. 223, 2 N. E. 601; Williams v. W. 401, 2 L. R. A. 67n. Dougherty, Z7 Ind. App. 449, 77 N. * Woerner Am. Law. Admin., § 268 ; E. 305. Jeffersonville &c. R. Co. v. Swayne, ' Jeffersonville &c. R. Co. v. 26 Ind. 477; Croxton v. Renner, 103 Swayne, 26 Ind. 477. § 124 REVOCATION OF LETTERS AXD REMOVAL. 1 75 qualified was permitted to resign his trust.® It has been held, however, that even where there is no law allowing an adminis- trator to resign, yet if he does so, and his resignation is accepted by the proper probate court, such acceptance amounts to a revoca- tion of his authority.® The right of an administrator or executor to resign is recog- nized by statute in this state,^'' but even in the absence of any statute directly authorizing it such right has been unquestioned. However, by resignation an executor or administrator does not escape responsibility, and the court should not accept such resig- nation until the person tendering it has made a full and complete account and settlement of the trust to the court's satisfaction.^^ It would hardly be held under such statute as ours that there is any absolute or arbitrary right to resign. Before a resignation would be accepted, the court would want to be fully informed so as to determine if such resignation would be consistent with the interests of the estate. In some of the states notice of the in- tended resignation is required to be given to parties interested in the settlement of the estate.^" § 124. Who may apply, and for what causes. — On a writ- ten application, verified by oath, of any person interested in tlie estate, or of any co-executor, co-administrator or co-surety of such executor or administrator, specifying the grounds of com- plaint, any executor, administrator with the will annexed, or ad- ministrator, may be removed, and his letters superseded by the •Comstock V. Crawford, 3 Wall. 'Marsh v. People, 15 111. 284; (U. S.) 396, 18 L. ed. 34; Sears v. Trimble v. Williams, 18 Neb. 184, 24 Dillingham, 12 Mass. 368. N. W. 716; Tulburt v. Hollar, 102 In the absence of express statutory N. Car. 406, 9 S. E. 430. authority, an e.xecutor and testamen- " Burns' R. S. 1908, § 2756. tary trustee who has qualified cannot " Foster v. Wise, 46 Ohio St. 20, be permitted to resign in order to 16 X. E. 687, 15 Am. St. 542; Haynes place the trust estate in possession v. Meeks, 10 Cal. 110. of a member of the testator's family '' Macey v. Stark, 116 Mo. 481, 21 for greater economv in its adminis- S. W. 1088; Head v. Bridges, 67 Ga. tration. Mclntyre v. Proctor, 145 N. 227; Vail v. Male, Z7 N. J. Eq. 521. Car. 288. 59 S. E. 39.' 176 INDIANA PROBATE LAW. § 1 24 court in which such letters issued, for any of the following causes : First. Where, from sickness, habitual drunkenness, imbecility, change of residence, actual or intended, or other cause, he is ren- dered incapable of discharging his trust to the interest of the estate. Second. When he shall fail to make and return inventories and sale-bills, or to render account of his administration accord- ing to law or the order of the court, or shall waste or fail to pay over, according to law, the money of such estate. Third. When it shall be shown to the court, by his sureties, that such executor or administrator has become or is likely to become insolvent, in consequence of which his sureties have suffered or will suffer loss. Fourth. Where any administratrix or executrix, at the time letters issued, was unmarried, and shall afterward marry, and her husband shall fail to file his consent in open court, in writing, to her continuing as such. Fifth. But whenever an executor or administrator shall be about removing from the county in which he resided at the time he became such executor or administrator, he shall, before leav- ing such county, make a true and final exhibit, under oath, to the circuit court, of the condition of the estate of which he is executor or administrator, at which time his letters of executorship or ad- ministration shall be revoked : Provided, That if any executor or administrator removes to another county in this state, his letters shall be revoked, in the discretion of the court. Sixth. Where he shall fail to give additional bond, and sure- ties, as required by the court; or the court may, without such application for any such cause, in cases of an emergency, remove such executor or administrator instantly, without citation.^^ This section of the statute is not mandatory; an exercise of the " Burns' R. S. 1908, § 2762. moval may be made without any When a removal is asked on ac- proof. McFadden v. Ross, 93 Ind. count of a failure to file an inventory, 134. A failure to make and return and the answer filed does not deny inventories and sale bills is cause for the allegations of the petition, the re- removal. Pace v. Oppenheim, 12 Ind. 8 125 REVOCATION OF LETTERS AND REMOVAL. 1 77 powers conferred by it is, in a large measure, within the discre- tion of the court." An appHcation for removal invokes the exercise of a power which, in the very nature of things, in such a variety of instances must depend largely upon the discretion of the judge for its proper exercise, but such discretion is not an arbitrary one which would permit a probate judge to revoke an appointment at his pleasure, nor yet should its exercise be so narrowed as to operate against the plain interest of the estate. ^^ In one case it is said : "The statute gives a very broad discre- tion to the judge, evidently intended not to define or limit the disabilities which should be the cause of removal, but to leave room for application of the power to all causes which may occur to render execution of the will or administration of an estate too perplex."'" § 125. Same — Statute construed. — The causes for which an executor or administrator may be removed from his trust, and the mode by which his removal may be lawfully procured, and the persons who may make an application for his removal, are all accurately defined and pointed out in this statute; and from an examination of the statute it will be seen that the removal of an executor or administrator from his trust can only be procured upon the written application, to the proper court, verified by oath, of some person interested in the estate, or of his co-executor or co-administrator, if he has any, or a surety on his bond, specify- ing the grounds of complaint for such removal; and such written application must show that the applicant, if not a co-executor or co-administrator, or a surety, has a real and existing interest in the decedent's estate, and must allege some one or more of the 533. Failure to render accounts as "Williams v. Tobias, Z1 Ind. 345; required by law is cause for removal. Whitehall v. State, 19 Ind. 30; Wallis Evans v. Buchanan, 15 Ind. 438. It is v. Cooper, 123 Ind. 40, 23 N. E. 977 ; within the discretion of the court to Toledo &c. R. Co. v. Reeves, 8 Ind. remove an administrator for failing App. 667, 35 N. E. 199. to file an inventory. Williams v. To- " Woerner Am. Law Admin., § 269. bias, yi Ind. 345. "Winship v. Bass, 12 Mass. 199. 12 — Pro. L.a.w. 178 INDIANA PROBATE LAW. § 1 26 Statutory causes for removal, and ask for such removal/' Such application may be verified by the oath of the applicant, or by the oath of any other competent person, whether such person has any interest in the estate or not.^^ A complaint to remove an adminis- trator and annul his letters, on the ground of there being no assets of the estate within the jurisdiction of the court, is bad if it does not allege in positive terms that there were no assets belonging to the estate within the jurisdiction of the court at the time the administrator was appointed. This is an important jurisdictional fact, and the averments in reference thereto should not be equiv- ocal. ^'^ The decedent's widow has such an interest in his estate as will authorize her to make application for the removal of the administrator of his estate. ^*^ Hostile feeling existing between the executor or administrator and the widow of the decedent, the legatees, or those interested in the estate, which interferes with the efficient and prudent man- agement of the same, has been held sufficient cause for removal."^ § 126. Where letters have been issued out of statutory or- der. — The statute which gives to sons a priority of right over daughters to administer on the estate of a deceased parent in the "Vail V. Givan, 55 Ind. 59. Habit- of administration on the ground of iial drunkenness is cause for the re- there being no assets of the estate moval of an administrator without an within the jurisdiction of the court affirmative showing that he has there- when the administrator was appoint- by become incapable of discharging ed, alleging that no assets or prop- his duties. Gurley v. Butler, 83 Ind. erty of the decedent had come into 501. the county, and if so the same had " McFadden v. Ross, 93 Ind. 134. been administered before the appoint- An application for the removal of an ment of the administrator, is bad administrator may be verified by the for uncertainty; also, a paragraph is oath of the applicant or any compe- bad showing indebtedness under judg- tent person, and an answer and other ment upon suit brought by the ad- pleading necessary to form an issue ministrator, whose letters of admin- are required, and a trial by the court istration it is sought to annul for without a jury. Williams v. Tobias, the reason that there are no assets. y? Ind. 345, overruled. Langsdale v. Woollen, 120 Ind. 78. " Langsdale v. Woollen, 99 Ind. ^ Pace v. Oppenheim, 12 Ind. 533 ; 575; Kelly v. Kelly, 9 Ala. 908, 44 Evans v. Buchanan, 15 Ind. 438. Am. Dec. 469. A paragraph of com- "^ Estate of Pike. 45 Wis. 391. plaint in an action to annul letters § 12/ REVOCATION OF LETTERS AND REMOVAL. 1/9 absence of a widow or widower is mandatory; and if application is made in time the court has no discretion, but must grant letters to the applicant. But where letters have been issued to a daugh- ter, and a son afterwards makes application for letters, and asks that the letters of administration issued to the daughter be re- voked and that she be removed from the trust, such petition must clearly show that he possesses all the necessary qualifications to entitle him to act as administrator, or such daughter will not be removed and the administration given to him.^" The grant of letters to the wrong person, or to one who is not preferred before the expiration of the time for such preference, should be set aside on application." An application, made in proper time, for the removal of an administrator appointed upon the widow's relinquishment of her right within the time allowed her to qualify, is not waived by a subsequent application for the removal of the widow who was appointed upon the resignation of the first administrator,^* § 127. Causes for removal — Neglect to file inventory. — A neglect to file accounts or inventories within the time required by law is a good cause for the removal of an executor or adminis- trator." Where the answer in such case admits a failure, as charged, to file an inventory and reports, and sets up matters in excuse, no ""Andis V. Lowe, 8 Ind. App. 687, are not authorized by the express 34 N. E. 850. Letters of administration provisions of the statute, such court granted out of the order prescribed may, of its own motion, upon the ap- by statute are not void, but at most plication of any person interested, or are only voidable, and until revoked or upon the suggestion of an amicus set aside in a proper proceeding for curiae, revoke or set aside the letters that purpose the refusal of the court so issued, such issue being coram non to grant other letters to another per- judice and void. Croxton v. Renner, son, although the latter may have a 103 Ind. 223, 2 N. K 60L right under the statute prior to that "' Todhunter v. Stewart, 39 Ohio of the person to whom the letters St. 181 ; ]\Iorgan v. Dodge, 44 N. H. were first issued, is not erroneous. 255, 82 Am. Dec. 213. Jones v. Bittinger, 110 Ind. 476, 11 =' Curtis v. Burt, 34 Ala. 729. N. E. 456. Whenever a court has is- "Pace v. Oppenheim, 12 Ind. 533; sued letters of administration which Evans v. Buchanan, 15 Ind. 438. l8o INDIANA PROBATE LAW. § 1 28 evidence is necessary on l^ehalf of the applicant, and the court may consider the sufficiency of the excuse and adjudge the case thereon, and the Supreme Court will not review the exercise of discretion therein unless abuse appears.^® The inventory and appraisement previously made for the pur- pose of determining whether administration shall be granted on the estate, or whether the same shall be set off to the widow under the statute, is not a sufficient inventory and appraisement, if the estate is found to be of sufficient value to require an admin- istration, to relieve an administrator from the necessity of filing another, and his failure to do so is good cause for his removal. The preliminary inventory and appraisement may or may not embrace all the property, and it is not conclusive on the question of the value of the property appraised; for if the administrator at any time after his appointment should discover that the estate is not worth over the statutory amount allowed to the widow, he is required to report the fact to the court, and after deducting the expenses of administration from the property in his hands he shall deliver the remainder to the widow. He cannot make such discovery except by making an inventory of the estate and caus- ing it to be duly appraised." § 128. Same — Drunkenness, imbecility. — Habitual drunk- enness is made a cause for the removal of an executor or admin- istrator, and it is not necessary to show affirmatively that by rea- son of such drunkenness the person whose removal is asked has been rendered incapable of discharging his trust to the interest of the estate. The court will take judicial cognizance of the fact that habitual drunkenness incapacitates a man for the discharge of such trust, and it is not necessary for the court to inquire be- yond the fact of such habitual drunkenness.^* The imbecility required by the statute should, however, be such as would disqualify one from discharging the duties of the trust, and the fact of such imbecility should be determined as in case of unsoundness of mind requiring the appointment of a guardian. ^ McFadden v. Ross, 93 Ind. 134. ^ Gurley v. Butler, 83 Ind. 501. " Pace V. Oppenheim, 12 Ind. 533. 129 REVOCATION OF LETTERS AND REMOVAL. l8l The statute does not define the degree of imbecility necessary to disqualify a person. The drunkenness contemplated by this statute is such habitual indulgence on the part of the executor or administrator as would render him incapable of giving the proper degree of attention to the management and business of the estate. Proof that he has occasionally been seen intoxicated is not sufficient. As is said in one case, it must be "habitual, continued, inveterate and irreme- diable habits of drunkenness, incapacitating him from the trans- action of business."-** § 129. Same — For failure to give bond, or to account. — As the statute also requires the filing of a bond on the appoint- ment of an administrator, even where there is little or no estate, some bond must be filed so as to hold the administrator to a re- sponsibility in the performance of his duties, and a failure to file such bond is good ground for his removal.'" An administrator or executor who is required, by an order of court, to give a new or additional bond, and fails to comply with such order, may be removed and his letters revoked.'^ The neglect of an administrator, for nearly a year, to file his further account, after the court had ordered him so to do, such administrator having in his hands at the time moneys of the estate not paid over, is sufficient cause for his removal.^^ The ^ In re Cady, 103 N. Y. 678, 9 X. E. habitual drunkard. Nor is it neces- 442; Elmer v. Kechele, 1 Redf. (N. sary he should be continually in an Y.)'472; Ludwick v. Commonwealth, intoxicated state. A man may be an 18 Pa. St. 172. Said the court in habitual drunkard, and yet be sober this case: "To constitute an habitual for days and weeks together. The drunkard, it is not necessary that a only rule is, has he a fixed habit of man should be always drunk. It is drunkenness? Was he habituated to impossible to lay down any fixed rule intemperance whenever the oppor- as to when a man shall be deemed tunity offered? We agree that a man an habitual drunkard. It must de- who is intoxicated or drunk one-half pend upon the decision of the jury, his time is an habitual drunkard, and under the direction of the court. It should be pronounced such." may, however, be safely said, that to ~ Toledo &c. R. Co. v. Reeves, 8 bring a man within the meaning of Ind. App. 667, 35 N. E 199 the act, it is not necessary he should '^ Burns R. S. 1908, § 2767. be always drunk. Occasional acts - Evans v. Buchanan, 15 Ind. 438. of drunkenness do not make one an l82 INDIANA PROBATE LAW. 130 fact that a person appointed administrator or executor can neither read nor write is, however, no cause for his removal. ^^ An edu- cational qualification, desirable though it may be, is not a statu- tory requirement in this state. § 130. Same — Non-residence. — If the executor or admin- istrator resident in this state ceases, from any cause, to be such, it is made the duty of the clerk or court to appoint an adminis- trator with the will annexed, or de bonis non, who is a resident of the county where the estate is to be administered, to act in the stead of the one who has left the state. ^* If an administrator or executor remove beyond the county in which his letters were granted, it is a cause for his removal. The fact that he has removed to another state because the greater part of the assets of the estate are in that jurisdiction is no defense. However, the mere fact of his removal does not vacate the office; a judgment of the court is necessary to establish such fact.^° As a general rule, it may be said that if an executor or admin- istrator takes himself beyond the jurisdiction of the court making the appointment, and if the estate is such that it needs his care and attention, the court in the exercise of its discretion should remove him. § 131. Same — Effect of marriage. — Whenever the ground of complaint is that any executrix or administratrix, being an unmarried woman, has, since the granting of letters, married, the court shall not supersede such letters and remove her, if her hus- band will signify his assent, in writing, filed in open court, to her continuing as such, and if she shall give further bond and surety to the satisfaction of the court, if such surety be required. ^^ Under this section of the statute a feme sole who, having been appointed executrix or administratrix, should marry during the continuance of her trust, gives sufficient cause for her peremptory removal, unless her husband will file in open court his written consent to her continuing in such trust. This consent does not ''' Gregg V. Wilson, 24 Ind. 227. ^ State v. Rucker, 59 Mo. 17. ■" Ewing V. Ewing, 38 Ind. 390. ^ Burns R. S. 1908, § 2768. § 132 REVOCATION OF LETTERS AND REMOVAL. 1 83 make him a co-administrator or co-executor with her; the office remains entire in the wife.^' Marriage does not eo instanti deprive her of her powers as such officer, but renders her incompetent to hold the office, unless her husband should consent, so that she may be proceeded against for suspension and removal.*^ § 132. Application for removal — Notice, etc. — AX'hile it is probably true that in a proper case the court could of its own motion remove an executor or administrator, yet the usual prac- tice is to invoke action of the court by filing an application for removal and giving to the officer charged notice of such applica- tion. Our statute provides that upon filing such application, or upon the order of the court, the clerk shall issue a citation to the person complained against, requiring him to appear and answer; which citation shall be served on him ten days before the hearing of the cause.'® Where the executor or administrator is a non-resident, a cita- tion to him to appear and answer a i^etition for his removal is unnecessary, because it would be unavailing."'*' If such executor be not a resident of the state, notice of the filing of such applica- tion shall be given three weeks successively in some newspaper published in the county where such application is filed, or, if none be printed therein, then in some newspaper in this state nearest thereto.*^ Publication for three weeks consecutively means a publication for twenty-one days, and not simply three insertions in a weekly newspaper, which would ordinarily cover a period of but fifteen days.^" " Jenkins v. Jenkins, 23 Ind. 79. " Burns R. S. 1908, § 2764. ^ Cosgrove v. Pitman, 103 Cal. 268, *^ Loughridge v. Huntington, 56 37 Pac. 232. Ind. 253; Meredith v. Chancey, 59 ** Bums R. S. 1908, § 2763. Ind. 466. Citation is usually by news- "Crabb v. Atwood, 10 Ind. 331. paper publication. It should follow The court say : "The mere fact that the prayer of the petition. Robinson the state of the case required notice v. Steele, 5 Ala. 473; Scott v. Ken- by publication, at once shows that a nedj', 12 B. Mon. (Ky.) 510; Neal citation was not requisite, because it v. Wellons, 20 Miss. 649. would have been unavailing." 184 INDIANA PROBATE LAW. § 1 33 A petition for the removal of an administrator was filed in vacation and the clerk gave notice of its pendency by publication; held, that an order of court authorizing such publication was un- necessary." How the fact of non-residence shall be brought to the knowledge of the clerk, so as to authorize him to make the publication required by this statute, is a question nowhere deter- mined in the act relating to decedents' estates. Formerly this act contained a section** which required the affidavit of some dis- interested person, as to the fact of such non-residency, to be filed with the clerk of the court where the petition for removal was pending, and the notice by publication given by such clerk was based upon this affidavit ; while the act under consideration is now silent upon this point, it will be found to be the safer prac- tice, when an application for the removal of a non-resident execu- tor or administrator is filed, to accompany such application with an affidavit showing the fact of such non-residence. § 133. Same — Notice by publication. — The statute pro- vides for notice of the application either by citation or publica- tion. Section 322, Burns' R. S. 1908, relating to the procedure in civil cases, provides for publication against non-resident defend- ants in civil actions. Under this section it has been held that the affidavit must show that the party proceeded against is a non-resi- dent of the state, *^ and such affidavit will not be held insufficient simply because the affiant has made oath that "he is informed and verily believes."**' To swear that he believes a thing to be true is equivalent to swearing that it is true.*^ Where the ad- ministrator is a non-resident, and where the record is silent upon that point, it will be presumed that a proper affidavit to authorize the publication was filed. *^ Any action of the court removing an executor or administrator without a compliance with these sections of the statute relating to "Crabb v. Atwood, 10 Ind. 331. ^ Bonsell v. Bonsell, 41 Ind. 476; " R. S. 1876, § 172. Trew v. Gaskill, 10 Ind. 265. " Johnson v. Patterson, 12 Ind. 471 ; " Simpkins v. Malatt, 9 Ind. 543. Unknown Heirs v. Kimball, 4 Ind. ^ Crabb v. Atwood, 10 Ind. 331. 546, 58 Am. Dec. 638. § 134 REVOCATION OF LETTERS AND REMOVAL. 1 85 notice, unless such executor or administrator voluntarily appears to such action, would be a nullity."*® The petition for the removal of an executor or administrator must not only contain some definite and specific charge of mal- administration against such officer, but he must have such notice of the proceeding as the statute requires; and unless he has been so notified or has personally appeared, a judgment of removal against him cannot be entered.^" But if one who has been appointed administrator has been judicially declared to be insane, notice to him is unnecessary, and he may at once be removed by the court. °^ § 134. Who may move for revocation or removal. — One who has no direct interest in the estate or who cannot be benefited by the removal of the executor or administrator, or the revoca- tion of his letters, cannot apply for his removal. For this reason the application must show the interest of the party invoking it and in what way he will be benefited or affected by the order he asks the court to make. It is not sufficient in such application to charge mismanagement, misapplication of funds, or maladminis- tration in general terms, but the facts must be stated." A creditor who is entitled to letters may apply for the removal of an administrator, if, within the time such creditor had priority in the right of appointment, the court appoints a stranger to the " Dibble v. Dibble, 8 Ind. 307. guardian, and without appearance by Where an administrator is discharged or for him. The order was there- or removed interested parties have fore void, as he could not be re- the right to object to his account as moved without notice. An order by stated in his reports. Poulson v. Na- the circuit court removing a guardian, tional Bank. 33 N. J. Eq. 618. which appears upon its face to be ex 'o Vail V. Givan, 55 Ind. 59 ; Dibble parte and to have been made without V. Dibble, 8 Ind. 307 ; Martin v. Beas- any notice of any character, and with ley. 49 Ind. 280; Colvin v. State, 127 no finding by the court that there was Ind. 403, 26 N. E. 888. In Colvin any notice, being absolutely void may V. State,' 127 Ind. 403, 26 N. E. 888. be attacked collaterally." it is said: "The order removing the "In re Blinn, 99 Cal. 216, 33 Pac. guardian, or purporting to remove 841. him, was ex parte, and was made « Woemer Am. Law Admm., ^ 2/2; without anv notice whatever to the Vail v. Givan, 55 Ind. 59. 1 86 INDIANA PROBATE LAW. § 134 office." But if one who is next of kin and entitled to administer yield his right to a stranger, he may not thereafter revoke his consent and ask for the removal of the one appointed."* And where the appointment of one was void because of a prior ap- pointment, such a one cannot ask for the removal of such prior appointee on the ground that such appointee's letters were void- able." Nor can an illegitimate son ask for the removal of his mother as administrator of the estate of his putative father on the ground that she was never married to the intestate, for such son has no interest in the estate to give him a right to make the appli- cation.^'' Our statute provides that an application for removal may be made by any person interested in the estate, or by any co-execu- tor, co-administrator, or co-surety, and such application must be made under oath and specify the grounds for removal." And any person interested in the estate may file and prosecute such application independently of other parties having a like interest, and unless required to do so by the court, such other persons need not be made parties to the application. °^ When the supervisory power of probate courts over executors and administrators is considered, and the duty resting upon such courts to vigilantly exercise this power, taken in connection with the amount of personal knowledge in the premises, which the court will, generally, as a matter of course, possess, the exercise of such power in the removal of an executor or administrator from his trust will not, in a doubtful case, be interfered with by the Supreme Court. "^ Where a court revokes letters of administration, it will be presumed, until the contrary is made to appear, that the same court granted them.^*^ "^ Ferris v. Ferris, 89 111. 452. " Bums' R. S. 1908, § 2762. " Cole V. Dial, 12 Tex. 100. ^ Estate of Pike, 45 Wis. 391. "Coltart V. Allen, 40 Ala. 155, 88 'MVhitehall v. State, 19 Ind. 30. Am. Dec. 757. ""State v. Johnson, 7 Blackf. (Ind.) ^ Alyatt V. Myatt, 44 111. 473. 529. §135 REVOCATION OF LETTERS AND REMOVAL. 187 § 135. Defenses to application. — x\n administrator or ex- ecutor cannot be removed, as we have shown, except upon a proper apphcation of one of the classes of persons named in the statute, or upon some legal cause as specified in the statute, and after due notice to him.®^ The statute contemplates the filing of an answer where an ap- plication to remove an executor or administrator is made, the formation of issues, and a trial by the court, upon evidence, in the exercise of its probate jurisdiction, in a manner more sum- mar}', but still somewhat analogous to ordinary civil actions. The case of Williams v. Tobias, 37 Ind. 345, holding a different view of the law, is on this one point overruled. *'- In an action to revoke letters of administration and set aside a sale of real estate made by the administrator, on the ground that his appointment was null and void, the purchaser of such real estate is not a proper party defendant. *^^ It has been held that, where a cause which would disqualify one from holding letters of administration was well known at the time of his appointment as administrator, such cause could not afterwards be taken advantage of for the purpose of remov- ing such administrator.** Mere errors of judgment are not sufficient to authorize the removal of an administrator. Such errors must amount to mal- feasance, or there must be wilful misconduct, waste or misappro- priation of assets.*^ The widow and heirs of a decedent cannot maintain proceed- ings to have letters of administration revoked, and a sale of the decedent's land by the administrator set aside on account of al- leged fraud and collusion in the recovery of a judgment to which "Vail V. Givan. 55 Ind. 59. 396. Upon the hearing of an applica- '"McFadden v. Ross, 93 Ind. 134; tion to remove an administrator it is Phelps V. Martin, 74 Ind. 339; Ewing not competent to show that the dece- V. Ewing, 38 Ind. 390. dent expressed a wish that there " McManus v. Bush, 48 Ind. 303. should be no administration, nor a "Drake v. Green, 10 Allen (Mass.) custom of the court as to the appoint- 124; Lehr v. Tarball, 2 How. (Miss.) ment of administrators. Bowen v. 905. Stewart, 128 Ind. 507, 26 N. E. 168, " Witherspoon v. Watts, 18 S. Car. 28 N. E. 73. l88 INDIANA PROBATE LAW. § 1 36 they were not parties, and for the payment of which the land was sold by such administrator.***^ If an administrator be sued for a debt of his intestate, and after such suit has been commenced the administrator should be removed and his letters revoked, he may plead such revoca- tion in bar of the further progress of the action.®^ It is a good defense to an action on a note payable to an executor or admin- istrator of an estate, as such, and sued on by him in that capacity, to show that the note belongs to the estate and that the letters issued to such executor or administrator have been revoked.®* While the safety of the estate and its efficient administration is the paramount object of probate courts, yet they will not per- mit this consideration to control personal rights, or to lead to the impeachment of the competency or integrity of the court's ap- pointee because some other person may be better qualified for the trust.''* § 136. Hearing on application — No jury. — The statute provides, at the term of court next after notice has been given, the court shall proceed to hear the proofs and allegations of the parties, and, upon such hearing, may examine such executor or administrator on oath.'^" Under this section of the statute the administrator or executor, in addition to answering the applica- tion as an action against him, may be examined on oath, orally, at the hearing of the cause. '^^ If the hearing authorized by this statute be not had at the next term of court after notice has been given, it may be had at the next succeeding term, if the cause is properly continued thereto." The constitution of Indiana provides that "in all civil cases the right of trial by jury shall remain inviolate." As this provision *= Cassel V. Case, 14 Ind. 393. Bowen v. Stewart, 128 Ind. 507, 26 N. "Morrison v. Cones, 7 Blackf. K 168, 28 N. E. 1Z\ McClelland v. (Ind.) 593. Bristow, 9 Ind. App. 543, 35 N. E. "'Leach v. Lewis, 38 Ind. 160. 197. Where an application is made to re- ** Woerner Am. Law Admin., 269. move an administrator, the party ™ Burns' R. S. 1908, § 2765. making the application is not entitled " McFadden v. Ross, 93 Ind. 134, to a change of venue from the judge. "Crabb v. Atwood, 10 Ind. 331. § 137 REVOCATION OF LETTERS AND REMOVAL. 1 89 applies, in terms, but to civil cases, the question of what is a civil case within its meaning becomes important. At the time of the adoption of the constitution the term "civil case" had a fixed and definite meaning which had been long established at common law, and the term was used in its common-law sense. When the code of civil procedure was adopted in this state the distinction theretofore existing between actions at law and in chancery was abolished, and one form of action adopted, in all cases, to be known as a "civil action." The rule, however, seems to be well settled that this constitutional provision embraces only such cases as were treated as civil cases in this state at the time of the adop- tion of the constitution.'^ This construction of the above clause of the constitution had the effect, on this one point of practice, to maintain a distinction between the law and equity cases. § 137. Same. — This seeming contradiction between the rulings of the Supreme Court and the provision of the code of practice was remedied in 1881 by the enactment of what is now § 418. Bums R. S. 1908, which, for all practical purposes in the trial of causes, re-establishes the old distinctions existing between the methods of trial in actions at law and actions in chancer}^ The legislature may prescribe the right of trial by jury in cases where the constitution does not give it as a right, but they cannot with- hold such right in cases where it is so given.'* And it may be safely assumed that matters within the act relating to the settle- ment of decedents' estates are not "civil cases" within the above- established meaning of the term, and that in trials arising under the provisions of that act a jury will not be allowed as a matter of right. Such right was formerly prescribed by statute. Prior to the adoption of the revised statutes of 1881 any issue of fact concerning the settlement of the estate of any decedent was triable by a jury at the request of either party ;^^ but this statute is omitted from the revision of 1 881. A jury may be allowed "Lake Erie &c. R. Co. v. Heath, 9 han v. Works, 72 Ind. 19; Clouser Ind. 558; Shaw v. Kent, 11 Ind. 80; v. Ruckman, 89 Ind. 65. Clem V. Durham, 14 Ind. 263 ; Ham- '' Lake Erie &c. R. Co. v. Heath, Ivn V. Nesbit. 37 Ind. 284 ; McMa- 9 Ind. 558. '= R. S. 1876, p. 556. § 188. 190 INDIANA PROBATE LAW. § I38 on the trial of a claim against the estate of a decedent, because such trial is ''conducted as in ordinary civil cases." But the trial of an application to remove an executor or administrator must be tried by the court in a summary manner."" The conclusion, then, seems to be that, in the absence of any statute authorizing a jury trial in such case, no matter arising strictly under the act for the settlement of decedents' estates can be tried by a jury. § 138. The hearing a summary proceeding — No change of venue. — A proceeding to remove an administrator, being sum- mary in its character, is one to which the statute providing for changes of venue and change of judge does not apply. The rea- sons are given by the court in the case of Bowen v. Stewart, 128 Ind. 507, 26 N. E. 168, 28 N. E. y-^, where it says : "The appoint- ment and removal of an administrator, and the dealings which he has with his trust, are so exclusively under the supervision of the judge of the court wherein the estate is pending for settlement that it is evident it was never the legislative intention that this supervi- sion might be destroyed by the filing of an affidavit for a change of venue, or for a change of judge. If an adminisrator may apply for a change from the county or judge, in an application for his removal, we know of no reason why he may not do so when he presents a partial, or his final settlement report. No one can so intelligently exercise the discretion which belongs to the court as the regular judge thereof, who is fully acquainted with the condition of the estate, and the manner in which the adminis- trator has theretofore performed his duties. * * * If an administrator is entitled to a change from the judge or county in such matters connected with the settlement of his estate as rest in the sound discretion of the court, the result must work great injury to the distributees and creditors of estates because of the delay and expense which will attend the settlement thereof."" § 139. Judgment, costs, appeals, etc.— If the determination of the court be against the application to remove, the costs of the proceedings may be taxed against the applicant; but if such de- ™McFadden v. Ross, 93 Ind. 134. "McClelland v. Bristow, 9 Ind. App. 543, 35 N. E. 197. § 139 REVOCATION OF LETTERS AND REMOVAL. I9I termination be against such executor or administrator, he shall be removed and his letters superseded immediately, or a new or additional bond as surety be required, as the case may be, and the costs of the proceedings be taxed against him personally.'* The only judgment a court can render in such an action is to remove or refuse to remove the executor or administrator; but when the cause alleged for such removal is the failure of the executor or administrator to make and return a full and correct inventory, he cannot be compelled, in the same proceeding, to account for the articles not inventoried. ''* If, after a judgment of removal, an administrator or executor appeal, he may not continue to act in the trust pending such appeal. He shall be removed and his letter superseded immedi- ately. The appeal does not suspend such revocation. *° Nor by reason of such appeal is an administrator entitled to interest on a claim theretofore allowed him for services during the time such appeal was pending, nor to the expenses incurred by such appeal.*^ An administrator pendente lite may be appointed by the court to look after the estate during the time of the litigation over the removal of an administrator." A judgment of removal, like any other judgment, if not abso- lutely void, is impervious to a collateral attack." The appeal suspends, until its termination, the powers of the person against whom it is taken, and all his intermediate acts are ineffectual. This would be the rule where the order revoked the letters and the administrator was removed. If anything is necessar)^ to be done for the estate pending the prosecution of an appeal from the order of the court removing an administrator or executor, it is within the power of the pro- " Burns' R. S. 1908, § 2766. ceedings, is to stay the enforcement "Williams v. Tobias, Zl Ind. 345. of the judgment appealed from." *" Hayes v. Hayes, 75 Ind. 395. It is " McClelland v. Bristow, 9 Ind. said in this case: "An appeal does App. 543, 35 N. E. 197. not annul a judgment; the utmost ef- '"Burns' R. S. 1908, § 2753. feet it can have, even when accom- *^ Simpson v. Cook, 24 Minn. 180; panied by the proper auxiliary pro- Harrison v. Clark, 87 N. Y. 572. 192 INDIANA PROBATE LAW. §140 bate court to appoint an administrator pendente lite. The bond of such officer is not vacated by such appeal, but only suspended.^* § 140. Effect of removal. — Upon making an order remov- ing an executor or administrator, if such order is appealed from, the court should forthwith require from such officer an account- ing of the estate in his hands and a payment of any balance found lawfully due from him to his successor, if one has been appointed, or if none has been appointed, to order it paid into court for whosoever may afterwards be found entitled to it. It is pro- vided that whenever any executor or administrator is so removed as aforesaid all his power shall cease and his acts as such be void, and the court shall appoint his successor, to whom letters de bonis non shall issue.^"^ An executor or administrator who has been so removed should pay the money remaining in his hands belonging to the estate into court or to his successor in the trust, without a demand for such payment,^** and, on his failure to make such payment, he may be compelled by such successor to do so.^^ After he has been removed, such executor or administrator has no authority over the estate except to report his acts to the date of such removal and turn over the balance of the estate in his hands to his successor, and all persons are bound to take notice of his removal.** The following from a noted author is pertinent in this connec- tion : "A revocation upon citation, where the grant of letters was voidable only, leaA-es all lawful acts done by the first admin- istrator valid and binding, as though his authority had not been questioned ; all sales of real or personal property made lawfully by the executor or administrator, and with good faith on the part of the purchaser, are and shall remain valid and effectual, and the payment to him of a debt to the estate will be a legal discharge to the debtor. This is self-evident, and it would be a waste of time and space to examine the very numerous cases so holding."*^ ** Woerner Am. Law Admin, § 274. ** Owens v. Cowan, 7 B. Mon. '''Burns' R. S. 1908, § 2771. (Ky.) 152; Franklin County v. Mc- *■ Lane v. State, 27 Ind. 108. Elvain, 5 Ohio 200. *' Kelly V. Weddle, 1 Ind. 550. «" Woerner Am. Law Admin., § 274. § 141 REVOCATION OF LETTERS AND REMOVAL. 1 93 The removal of an executor or administrator authorizes the administrator de bonis non to immediately take possession of all the property and effects of the decedent not already administered, and he may bring suit for that purpose.'"' After his removal an executor or administrator can exercise no lawful control or authority over the estate, and for this reason the sureties on his bond will not be held liable for any act of his affecting the estate after his removal, although such officer would be himself personally liable. The removal of an administrator and the appointment of his successor is a judicial proceeding and is binding upon all con- nected with it.^^ If a suit be pending against him in his official character at the time of his removal, he can plead such removal and have his successor substituted in his stead. ^^ After the revocation of letters, the removal or resignation of an executor or administrator, such officer cannot complete a sale he has been negotiating on behalf of the estate, nor collect assets of the estate.""^ When satisfied that any executor or administrator who has been removed from his trust yet retains assets of the estate in his hands, the proper court can compel a payment or delivery thereof to his successor in office, and may enforce such payment by at- tachment ; but a court is not authorized to resort to such com- pulsory measures in favor of such removed executor or adminis- trator against such successor for a balance due from the estate to such removed executor or administrator.®^ In case of an unnecessary delay on the part of such executor or administrator, the court may, by citation and attachment, compel him to render his account.*' § 141. Intermeddling and embezzlement after removal, — \\'henever any executor or administrator is removed, and his letters are superseded, if he, at any time afterward, unlawfully " Pitcher v. Reese, 6 Ohio 418. " Woerner Am. Law Admin., § 274. " Franklin County v. McElvain, 5 " Burns' R. S. 1908, § 2772. Ohio 200. " Burns' R. S. 1908, § 2773 ; Phelps •'National Bank v. Stanton, 116 v. Martin, 74 Ind. 339; Ex Parte Mass. 435. Wright, 65 Ind. 504. 13— Pro. L.wv. 194 INDIANA PROBATE LAW. § 141 intermeddle with such estate, he shall be attached and imprisoned not less than ten days nor more than one month, by the proper circuit court, upon complaint of any one interested.^*' In addition to removing him, if any executor or administrator shall embezzle or conceal any of the property of the decedent, the court shall attach his person and property, and examine him under oath touching such property; and on his refusing to answer in such examination, or to deliver up such property, or secure the value thereof to the persons interested in such estate, with ten per cent, damages thereon, the court shall commit him to jail until the order be complied with or he be discharged according to law." This last section of the statute, strictly construed, does not apply to the case of one who has been removed from his trust, and who is no longer an executor or administrator. These two sections should, perhaps, be construed together, and when an administrator or executor is both delinquent and recalcitrant, re- fusing to answer questions or to surrender assets or moneys of the trust, within his control, or to give security within his power to give for the making good his delinquency the court may well exercise its indisputable power to enforce its orders by imprison- ment; but this power was not designed to go further and to be used as a punishment for past offenses. The object of the law under consideration is to effect a discoveiy and restoration, but not to punish for what could not be compensated; to enforce obedience to the orders of the court, and not to punish the ad- ministrator.'** An administrator or executor, who fails to comply with an order of court made under the provisions of the last section of the statute above set out, is liable to imprisonment as for con- tempt, but is not subject to a fine ; and an imprisonment is only authorized upon the refusal of such executor or administrator to answer, upon examination, or to deliver up assets of the estate, or to secure the persons interested therein for the value thereof with ten per cent, damages thereon.^^ *« Burns' R. S. 1908, § 2770. Parte Wright, 65 Ind. 504. " Burns' R. S. 1908, § 2772. «' Ex Parte Wright, 65 Ind. 504. "'Phelps V. Martin, 74 Ind. 339; Ex § 142 REV'OCATION OF LETTERS AND REMOVAL. I95 § 142. Acts legalized. — All lawful acts done by executors or administrators whose authority shall cease, or by adminis- trators before notice of a will duly proved, shall be valid/ Even under this statute, if the appointment of an executor or administrator was void from the beginning, neither such execu- tor or administrator, nor those who deal with him, will be pro- tected. The judgment of court removing him and revoking his letters is simply a declaration of the nullity of the acts done, and serves the purpose of correcting the records of the court and pre- venting any further action under such void appointment.^ But if such appointment was merely voidable, then this statute applies and cures any defect in the exercise of his powers in the settlement of the estate entrusted to him.^ ' Burns' R. S. 1908, § 2774. ' Shephard v. Rhodes, 60 111. 301. ■ Griffith V. Frazier, 8 Cranch (U. S.) 9, 3 L. ed. 471; Williams Extrs. 586. CHAPTER IX. DISPOSITION OF PERSONAL PROPERTY. § 143. What are assets. 144. What property charged. 145. Same — As to emblements. 146. Same— As to fi.xtures. 147. Same — As to rents. 148. Same — As to interest and profits. 149. Same — As to choses in action, money, stocks, etc. 150. Same — Property fraudulently conveyed. 151. Mortgages as personal prop- erty. 152. Same — Common-law rule. 153. Contracts in consideration of marriage. 154. Title to and power over per- sonal property. 155. Same — As to promissory notes, debts, etc. 156. Same — Right to sue. 157. The inventory and appraise- ment. 158. Inventory, statutory require- ments. 159. What the inventory should in- clude. 160. When and by whom inventory must be filed. 161. Separate and additional inven- tories. 162. What shall be omitted. 163. Appraisers, their appointment and duties. § 164. The widow's selection. 165. Same — Statute construed. 166. Same — Effect of a will. 167. Same — Widow may maintain action for. 168. Return of the inventory. 169. Examination and approval. 170. Sale of personal property — When made. 171. Postponement of the sale. 172. When notice of sale required. 173. Terms of public sale. 174. Sale bills and sale clerk. 175. Personal property at private sale. 176. Such sale must comply with the order. 177. Report of private sale. 178. When sale may be vacated. 179. Sale of corporation stock. 180. Sale of written contracts. 181. Sale of contracts for land. 182. Same — Assignment, sale o f part, bond. 183. Disposition of worthless sale notes. 184. Same — Who may sue, etc. 185. Disposition of desperate debts. 186. Collection of debts and de- mands. 187. Persons concealing goods. 188. Executor may administer oaths. § 143. What are assets. — Whatsoever property of a decedent which will be liable to sale for the payment of the debts and lia- 196 § 143 DISPOSITION OF PERSONAL PROPERTY. I97 bilities of his estate becomes assets in the hands o£ his personal representative. "Assets" is a term which includes property avail- able, not for enjoyment, but in trust or custody for the payment of demands. Property held by executors and administrators is assets in their hands for the benefit of the creditors of the dece- dent and of the legatees and distributees. In this respect such officers are trustees.^ Judge Story says : "In an accurate and legal sense, all the per- sonal property of the deceased, which is of a salable nature, and may be converted into ready money, is deemed assets. But the word is not confined to such property ; for all other property of the deceased which is chargeable with his debts or legacies, and is applicable to that purpose, is in a large sense assets."" The term has been extended to include property or money lawfully received by the personal representative after the death of the testator or intestate, although belonging to another.^ If there is property in the hands of a decedent, at the time of his death belonging to others, whether held by him in trust or otherwise, which is not distinguishable from the mass of his own property, such property will be included in the assets of his 'Woerner Am. Law Admin., § 305. p. 917; Jeflfersonville &c. R. Co. v. What are personal assets in the hands Swayne, 26 Ind. 477. of an executor or administrator is " Story Eq. Jur., § 531. thus quaintly stated in an old work: 'Thurston v. Lowder, 40 Me. 197; '•.'\11 those goods and chattels, ac- Simpson v. Snyder, 54 Iowa 557, 6 N. tions and commodities, which were W. 730; IMulford v. Mulford, 40 N. J. the deceased's in right of action or Eq. 163. In DeValengin v. Duffy, 14 possession as his own, and so con- Pet. (U. S.) 282, 10 L. ed. 457, on p. tinned to the time of his death, and 290, the court says : "Upon a full con- which after his death the e.xecutor or sideration of the nature, and of the administrator doth get into his hands various decisions on the subject, we as duly belonging to him in the right are of opinion that whatever property of his e.xecutorship or administration, or money is lawfully recovered or and all such things as do come to received by the executor or admin- the executor or administrator in lieu istrator, after the death of his testa- or by reason of that, and nothing tor or intestate in virtue of his repre- else shall be said to be assets in the sentative character, he holds as assets hands of the executor or administra- of the estate; and he is liable there- tor, to make him chargeable to a cred- for, in such representative character, itor or legatee." 1 Shep. Touchstone, to the party who has a good title 496; 2 Lawson Rights, Rem. & Prac, thereto." 198 INDIANA PROBATE LAW. § 143 estate, and the owner has no remedy except as a general creditor of the estate.* But this rule is pretty generally modified as to trust funds or property held in a fiduciary capacity," in one case it being said "the modern decisions have cut loose from the rule and declare that whene\er it is shown that particular funds or the existing assets of an insolvent estate have been increased by trust money, a court of equity will, to the extent of the money so added, declare a trust or priority."" The executor or administrator will be charged not only with the chattels and property of the decedent in his possession at death, but also with all such property as might by reasonable diligence be recovered, for property which was never in the de- cedent will become assets of the estate for \vhich the executor or administrator will be chargeable when received by him ;^ such as damages for loss of property taken from decedent,** bounty due and unpaid,® dividends on corporation stock earned but not de- clared until after the decedent's death,^** salary voted after his death, ^^ damages for laying out a highway.^^ But since as a general rule an executor or administrator takes no authority over the real estate, money received by l:im from a railroad company for a right of way over lands of the estate is not assets in his * Pryor v. Davis, 109 Ala. 117, 19 661; Woerner Am. Law Admin., So. 440; State v. Osborne, 69 Conn. § 368. 257, Zl Atl. 491 ; Bobbitt v. Jones, 107 ' Woerner Am. Law Admin., § 306 ; N. Car. 658, 12 S. E. 267; Trecothick Gray v. Swain, 2 Hawks (N. Car.) V. Austin, 4 Mason (U. S.) 16; Fow- 15. ler V. True, 1^ Me. 43 ; Attorney-Gen- ^ Grant v. Bodwell, 78 Me. 460, 7 eral v. Brigham, 142 Mass. 248, 7 N. Atl. 12; Rogers v. Hasack, 18 Wend. E. 851. (N. Y.) 319. " Smith V. Combs, 49 N. J. Eq. 420, ' Gardere, Succession of, 48 La. 24 Atl. 9; First Nat. Bank v. Hum- Ann. 289, 19 So. 134. mel, 14 Colo. 259, 23 Pac. 986; 20 '"Weller v. Cowles. 4 Conn. 182, 10 Am. St. 257; 8 L. R. A. 788n ; Kirby Am. Dec. 115. V. Wilson, 98 111. 240; Hubbard v. " Loring v. Cunningham, 9 Cush. Alamo Irrigating &c. Co.. 53 Kan. (Mass.) 87. dn, 36 Pac. 1053, Zl Pac. 625. " Goodwin v. Milton, 25 N. H. 458 ; ' Ulrici V. Baeckeloe, 72 Mo. App. Neal v. Knox &c. R. Co., 61 Me. 298. § 144 DISPOSITION OF PERSONAL PROPERTY. 199 hands/^ Damages recovered by an administrator for the wrong- ful death of his intestate are not assets of the estate." ^ 144. What property charged.— All the property of a de- cedent is liable to be made assets for the payment of the debts and liabilities of his estate, yet, while this is true, the personal property is the primary fund set apart by the law for that pur- pose, and it is the property with which the administrator is di- rectly charged. i -d^.i Property is divided into two classes, real and personal. Real property is such as has the characteristics of immobility or per- manency of location, as lands, and rights issuing out of land. Personal property is every species of property which does not possess these characteristics.- Chattels real, and certam estates less than freehold, as leases, for a term of years, are treated as personal property and go to the executor or administrator of the estate as assets, and should be by him inventoried and sold as personal property- and a lease of land for the life of the lessor is personal property and goes to the personal representatives of the deceased lessee and not to his heirs.' ' Where a person has sold real estate, and dies before the pur- -Hankins v. iMmball, 57 Ind. 42. the owner a right to consume such » JeffersonviUe &c. R. Co. v. Hen- articles as cannot be enjoyed ^u h- dricks 41 Ind 48; Hilliker v. Citi- out consumnig them, and to wear dncks 41 ina. y ^^^^ ^^^^^ ^^^.^^^ ^^ ^^^ necessarily de- 227. 65 X. E. 1046, 96 Am. St. 34 . ^^^H .2 \12 N^ E- 336^ "Tiedeman on Real Property, § 1. Smith ^ uoaas Like real propert.^ the title to person- Taylor^nJ^ord -d Ten t, ^§ 434. al property may be in one owner or m C.mnmgham ^^ ^^^^^^^^^ several, viz.: as joint tenants, ten ;° ..^ ^i^l^ thereto. Crawford ants in common, partners, corpora- ^^ P"'^^/;^^; '7^ Ca 299. But if the tions and ioint stock companies^ :,^t:T,osse^^on of such prop- Where personal property is willed to custody ana P _ al lega.e^ to be cHvided^^ II^ Jui^^T ^l^^andin^ owLship in them, It will vest in tnem wuuuu presumption of partition or iudicial 1^='""" -"'^^t ^^ ,ership a Hs- solel^y from posse.- ,hey tnay hold in common, as long as °"'«^=J^^P j.„y„,, uj N. Y. they soagree^ Baskm - Ha,. 59 -^ L-g. 588. Tlte delivery of fsuteln' ;ioVptopetty-.ife. ;: e,K,osed land catnes .itl, .. the pos- 200 INDIANA PROBATE LAW. 144 chase-money is paid or a conveyance executed, such real estate, for all the purposes of the administration, will be regarded as converted into money, and all the purchase-money remaining un- paid, in whatever form it may be, or however secured, belongs to the decedent's executor or administrator, and not to his heirs or devisees/* Where real estate has been directed by will to be uncondi- tionally sold, under the doctrine of equitable conversion, it will be deemed converted into personalty from the moment of the testator's death, and the proceeds, when it is sold, are assets in the hands of the executor.'" But this doctrine is qualified to the extent that where the sale directed is not unconditional, conver- sion does not take place until the event transpires when the con- version should be made.-" session of personal property thereon. Ferraris v. Kyle, 19 Nev. 435, 14 Pac. 529. "Henson v. Ott, 7 Ind. 512; Cooper V. Cooper, 21 Ind. 124. "Rumsey v. Durham, 5 Ind. 71; Nelson v. Nelson, 26 Ind. App. 331, 75 N. E. 679; Clark v. Worrall, 33 Ind. App. 49, 68 N. E. 699; McClure's Appeal, 72 Pa. St. 414; Hammond v. Putnam, 110 Mass. 232; Stagg v. Jackson, 1 N. Y. 206 ; Comer v. Light, — Ind. — , 93 N. E. 660. In this last case the court say: "The fiction of law that, under a simple direction to sell and divide the proceeds, con- version into money will be held in eq- uity to have taken place at the date of the death of the testator, and that eq- uity will treat that as done which is directed to be done, and it will be treated as that species of property into which it is directed to be con- verted, is grounded upon equitable considerations, and is interposed for the purpose of carrying out the inten- tion of testators so far as that can be done within the rules of law, and generally for the purpose of equality, and doing equity between heirs or next of kin, where no other rights intervene; but it has never been un- derstood that a testator can change realty to personalty, or vice versa, by the mere declaration that it shall be one or the other, and an examina- tion of the cases will disclose that the fiction of constructive conversion is grounded upon the proposition that, in the absence of intervening interests or rights, the testator's intention, as it affects the beneficiary, shall con- trol; but when the question is one between the beneficiary and the trus- tee of a mere power of sale, as to possession before sale, the right of the beneficiary is superior, or, if the rights of third persons attach or in- tervene before sale, the fiction is de- stroyed." "-" Comer v. Light, — Ind. — , 93 N. E. 660; Holland v. Cruft, 3 Gray (Mass.) 162; Savage v. Barnham, 17 X. Y. 561. § 144 DISPOSITION OF PERSONAL PROPERTY. 201 Mortgages and trust deeds made to secure money to the de- cedent belong to his personal representative.-^ In general, the term personalty has a wider meaning in the United States than in England, and includes shares of stock in corporations of various kinds, and other evidences of value not possessing intrinsic worth." Manure from the barnyard of a homestead or farm, although not incorporated with the ground, but piled for future use, belongs to the land,'=' though it has been' decided that manure in heaps is personalty."* But where manure has been made in a livery stable, or in some manner not connected with agriculture or husbandry, it is held to be personal property and to belong to the executor or administrator.-^ Where land is sold and the trees are reserved, such trees be- come personalty and pass to the personal representative of the person reserving them.'" Trees growing in a nursery, where they have been reared for the purpose of sale and removal, are per- sonal property and should be charged to the executor or adminis- trator.'' The general rule is that trees, vines, shrubs, and the fruit and products therefrom follow the title of the land upon which they grow, and so long as they are not severed will de- scend to the heirs.'' It is only some special fact or condition that will give the executor or administrator any interest in them. Fencing of all and every kind, although it may be temporarily detached from the realty, belongs to and goes with the land. But rails in stacks not intended for use as fencing pass to the executor or administrator as personalty.'" ^ Smith V. Dver, 16 Mass. 18; Long =' Corey v. Bishop, 48 N. H. 146. V OTallon, 19 How. (U. S.) 116, « Daniels v. Pond, 21 Pick. (Mass.) 15 L ed 550: Burton v. Hintrager, 367, 2,2 Am. Dec. 269; Snow v. Per- 18 Iowa 348; Williams v. Ely, 13 Wis. kins, 60 N. H. 493, 49 Am. Rep. 333. 1- Copper V. Wells, 1 N. J. Eq. 10. =•= Redfield on Wills, 151. ^- Dartington Per. Prop., p. 2 ; '' Hirth v. Graham, 50 Ohio St. 5/, Somcrby v. Buntin. 118 Mass. 279, 19 33 N. E. 90, 40 Am. St. 641, 19 L. R. Am. Rep. 459. A. 721n. =^Fay V. Muzzey, 13 Gray (Mass.) ^7 Am. & Eng. Encyc. Law, 241; 53. 74 Am. Dec. 619; Plumer v. Williams Extrs. 708; Price v. Bray- Pl'umer. 30 N. H. 558; Norton v. ton, 19 Iowa 309. Craig. 68 Me. 275. "Clark v. Burnside, 15 111. 62. 202 INDIANA PROBATE LAW. 8 145 A debt owing to the decedent from the person acting as his executor or administrator is assets of the estate in the hands of such officer and should be charged to him.^° Likewise a debt due from an heir or legatee, and it is the duty of the executor or ad- ministrator to charge himself with it, and if it is not paid, the amount of the debt should be deducted from the distributive share of the heir or the legacy of the legatee. ^^ § 145. Same — As to emblements. — The emblements and annual crops growing on the land at the time of an intestate's death pass to his administrator and become part of the personal assets of the estate.^- The words "emblements" and "annual crops" do not include uncut grass growing in the field, which de- scends with the land to the heir.^^ Emblements are defined by W^ebster to be "the produce or fruit of land sown or planted; the growing crops of those vegetable productions of the soil, such as grain, garden roots and the like, which are not spontaneous, but require an outla}' of cost and labor in one part of the year, the recompense for which is to arise in the shape of a crop in another part of the same year; used especially in the plural. The produce of grass, trees and the like is not signified by the term." As de- fined by Tiedeman, "Emblements are the profits which the tenant of an estate is entitled to receive out of the crops which he had ™ Bigelow V. Bigelow, 4 Ohio 138, administrators, and they are not 19 Am. Dec. 591. chargeable therewith." ^ Martin v. Martin, 56 Ohio St. 333, "" Evans v. Hardy, 76 Ind. 527. 46 N. E. 981 ; Keever v. Hunter, 62 Quoting from this case : "The dis- Ohio St. 616, 57 N. E. 454; New v. tinction between annual crops, merely New, 127 Ind. 576, 27 N. E. 154; vegetable productions of the soil, Holmes v. ^IcPheeters, 149 Ind. 587, raised by labor bestowed during the 49 N. E. 452. year, and trees, fruits and grass, ^- Rodman v. Rodman, 54 Ind. 444. which are, to a greater or less extent, In this case it is said: "But this re- of spontaneous growth, may be said quirement of the law refers only to to be well recognized and firmly es- crops which have been grown, or tablished by the authorities. The which, at the death of the decedent, words 'emblements' and 'annual were growing upon decedent's land; crops,' used in the act concerning de- and crops which are not only grown, cedents' estates, do not, therefore, in- but the seed of which are planted or elude uncut grass growing in the sown, upon the decedent's land after field, which descends with the land to his death, do not ordinarily go to his the heir." § 145 DISPOSITION OF PERSONAL PROPERTY. 203 planted, and which have not been harvested when his estate ter- minates."^* And all emblements and annual crops planted and grown after the death of the decedent are not chargeable to his personal representative, but belong to the heir.^^ The term includes those annual agricultural products which demand culture as distinguished from those which grow spon- taneously; crops which require annual planting, or, like hops, annual training and culture. Emblements thus include corn, potatoes, and most garden vegetables, but not fruits, and gener- ally not grass. They are deemed personal property and pass as such to the executor or the administrator of the occupier, instead of going to the heir, if he die before he has cut, reaped or har- vested them. The term includes eveiy product of the earth yield- ing an annual profit, as the result of labor, as corn, wheat, grain, hops, saffron, flax, melons and the like.^° Mr. Woerner says : "The reason of the rule is, that where the occupant of land has sown or planted the soil with the intention of raising a crop, and his estate determines without his fault before harvest time, he should not lose the fruit of his labor, to accomplish which the law gives to him, or, if the tenancy is ended by his death, to his executors or administrators, the profit of the crop."^' As between the heir and the administrator, emblements belong to the latter. But the administrator is not entitled to growing crops that were sown or planted after the death of the intestate. But a question of more difficulty arises where the administrator sells land of the intestate upon which are growing crops sown after the intestate's death. As to whether such crops, as between the vendor and vendee, pass with the land or not, courts have come to dift'erent conclusions. In this state the court has held that the purchaser of real estate at an administrator's sale thereof acquires no title to crops growing on the land at the time of the sale which were sown by the heirs or their tenants after the death '■" Tiedeman on Real Property, § 70 ; Rodman v. Rodman, 54 Ind. 444. Miller v. Wohlford, 119 Ind. 305, 21 ^Century Diet; Reiff v. Reiff, 64 N. E. 894. Pa. St. 134. *=Kid\ve]l V. Kidwell, 84 Ind. 224; "Woerner Am. Law. Admin., § 282. 204 INDIANA PROBATE LAW. § 146 of the decedent; nor will a statement made by the administrator at such sale that the crops are not reserved prejudice the rights of the heirs or estop them from claiming the crops.^® Where the law gives emblements to the executor or adminis- trator, it also gives to him the right to enter upon the land to han-est, gather, and market them.^" Annual crops growing upon the land of a decedent at the time of his death are personal estate, and go alike to the executor or administrator, and not to the devisee or heir, and such crops should be charged to and accounted for by sucli personal repre- sentative.*" § 146. Same — As to fixtures. — Fixtures belong to that class of property which lies on the boundary between real and personal property, and for this reason courts and writers have found it difficult to formulate a comprehensive and satisfactory definition of the term. They are annexations to the freehold ''Barrett v. Choen, 119 Ind. 56, 58, 20 N. E. 145, 21 N. E. 322, 12 Am. St. 363. In this case the court saj^: "Ordinarily, as between vendor and vendee, growing crops pass with the freehold and as a part of the free- hold, but this only applies as to grow- ing crops which belong to the vendor. Growing crops belonging to some- body else do not pass. The vendor cannot pass the title to that which does not belong to him. This is a proposition too plain to require the citation of authorities. The pur- chaser at the administrator's sale acquired title to the freehold, and to whatever belonged to it at the time of his purchase, but he acquired noth- ing more. The appellees were not the vendors of the purchaser; he ac- quired his title from the decedent through the administrator. The ap- pellees sowed, planted and cultivated the crops in controversy, and during the time were rightfully in possession of the real estate, and had the right to cultivate it. The crops were therefore no part of the freehold, but personal property belonging to the appellees. Under the circumstances, the appellant had no interest in the crops or claim upon them." "" Penhallow v. Dwight, 7 Mass. 34, 5 Am. Dec. 21. The phrase "emble- ments and annual crops" used in the statute does not include grass uncut and growing on the land at the de- cedent's death ; nor fruit on the tree. The distinction between annual crops, merely vegetable productions of the soil raised by labor bestowed during the year, and trees, fruits and grass, which are to a greater or less extent of spontaneous growth, is now well recognized and established by the au- thorities. Evans v. Hardy, 76 Ind. 527; Kain v. Fisher 6 N. Y. 597; Mitchell V. Billingsley, 17 Ala. 391. ^''Kluse V. Sparks, 10 Ind. App. 444. 36 N. E. 914, Zl N. E. 1047; Humphrey v. Merritt, 51 Ind. 197. § 146 DISPOSITION OF PERSONAL PROPERTY. 205 which may, according to concomitant circumstances, assume the character of either real or personal estate/^ They are removable or not according to the circumstances of each case. In its technical sense the word signifies such things only of a personal nature as have been annexed to the real estate, and which may be afterward severed or removed by the party who united them, or his personal representatives, against the will of the owner of the freehold.'*" This subject is of interest in this connection only in so far as it relates to the question when it arises between the administrator and the heir, or between the executor of a life tenant and the remainderman or reversioner. In determining whether or not a chattel attached to real estate becomes a fixture, much now depends upon the purpose for which it was attached and the intention of the parties at the time. By the old rule if a personal chattel was so affixed to the land as to be incapable of being detached therefrom without violence and injury to the freehold, it became a fixture and belonged to the real estate, but if not so annexed it remained a chattel. But the trend of the cases now is to hold that physical annexation to the realty is neither necessary nor sufficient to fix the character of the chattel. The criterion by which to determine the question de- pends on the circumstances of each case as viewed in the light of policy and intention of the parties. ^^ An article which would otherwise be deemed a fixture may, by severance and the under- standing of the parties, become personal property.** A fence, or even a house, placed on the land of another with the mutual in- " 1 Washburn Real Prop. 18. or is not a fixture. Binkley v. Fork- '-■ Woerner's Am. Law Admin., ner, 117 Ind. 176, 19 N. E. 753, 3 L. § 283. R. A. 33n ; Button v. Ensley, 21 Ind. "Providence Gas Co. v. Thurber, App. 46, 51 N. E. 380, 69 Am. St. 340; 2 R. I. 15, 55 Am. Dec. 621 ; Quimby McFarlane v. Foley, 27 Ind. App. V. Manhattan Cloth &c. Co., 24 N. J. 484, 60 N. E. 357, 87 Am. St. 264. It Eq. 260. The nature of the articles, is a question of fact in each case the manner in which they are affixed whether or not an article on real and the intention of the party making estate is a fixture. Balliett v. Hum- the annexation, together with the pol- phreys, 78 Ind. 388. icy of the law, are controlling factors ** Sampson v. Graham, 96 Pa. St. in determining whether an article is 405. 206 INDIANA PROBATE LAW. § 147 tention that it is to be held as the builder's property is to be con- sidered as personal property and may be removed.*^ Machinery placed upon leased premises which can be moved without per- manent injury to the real estate is personal property.*'' And if articles are attached to real estate under an agreement that they are to remain personal property, such articles will not become part of the real estate.*^ The rule as between the executor and devisee is that the lands shall go to the devisee in the same condition as it would have de- scended to the heir, therefore he would be entitled to all the articles affixed to the land whether they were annexed before or after the devise, and the executor, as against the devisee, is en- titled to such fixtures only as the administrator would be entitled to as against the heir. As between the administrator and the heir the rule is that nothing, after having been annexed to the freehold, can be severed and removed by the administrator, unless it clearly appears upon good and sufficient reason that it was not the purpose to make the annexation permanent, for the rule will be strictly applied in favor of the heir.*^ § 147. Same — As to rents. — On the death of one intestate the title to his real estate is cast immediately upon his heirs, and they are thereafter entitled to all accruing rents and profits aris- ing from such real estate. But whatever rents had accrued at '" Brown v. Turner, 113 Mo. 27, 20 612, 63 N. E. 774. Machinery used S. W. 660. In order that a building for manufacturing purposes simply will constitute an immovable fixture, fastened to the floor of the building, it must be actually or constructively and which can be taken up easily and annexed to the land, it must be ap- used as readily in one building as in propriate to the use of that part of another, is considered as personal the realty with which it is connected, property, and should be inventoried, and the intention of the person erect- Gale v. Ward, 14 Mass. 352, 7 Am. ing it to make it a permanent acces- Dec. 223; Hill v. Wentworth, 28 Vt. sion to the freehold must appear. 428. The modern doctrine does not de- *^ Young v. Baxter, 55 Ind. 188; pend upon mere physical annexation Price v. Malott, 85 Ind. 266. to create a fixture. Button v. Ens- "Broom's Legal Maxims 426; Wil- ley, 21 Ind. App. 46, 51 N. E. 380, Hams Extrs. 741; 13 Am. & Eng. 69 Am. St. 340. Encyc. Law 635. ^^ Gordon v. Miller, 28 Ind. App. §147 DISPOSITION OF PERSONAL PROPERTY. 207 the time of his death belong to his administrator.*'' The statute provides that executors and administrators shall have the same remedies to recover rents, and be subject to the same liabilities to pay them, as their testators and intestates.^" A lease for a term of years, with its rental and profits, is per- sonal property, which, on the death of the lessee, should be charged to his personal representative.^^ And where the legal title to land is not vested by the will in the executor, he is not entitled to the rents accruing upon such land, but, as in case of intestacy, the heir or devisee is entitled to such rents so long as the title in him remains undivested, it being said in one case that "as a general rule an executor, as such, has no authority to take possession of the real estate of his testator, or to receive the rents and profits thereof, in the absence of an express provision of the will authorizing him to do so. The only exception to this rule is where there is no heir or devisee of the testator present at the time of his death to take possession of such real estate."" But as in the case of an administrator, whatever rent or roy- alty had matured and become due in the lifetime of the testator would go to his executor and not to the heirs at law or devisees.^^ The receipt by the administrator, except when otherwise spe- cially provided, of the rents and profits of the real estate of an intestate accruing after his death, makes such administrator the trustee of the heirs, but not of the creditors of the estate ; but the application by the administrator of such rents and profits to the payment of debts against the decedent's estate does not create any claim against the estate in favor of the heirs. He can only receive such rents and profits either as the agent of or in trust for '' First Nat. Bank v. Hanna, 12 Ind. Mark v. North, 155 Ind. 575, 57 N. E. App. 240, 39 N. E.1054; King v. An- 902; Shipley v. Smith, 162 Ind. 526, derson, 20 Ind. 385; Trimble v. Pol- 70 N. E. 803. lock, n Ind. 576; IMcCIead v. Davis, ""Hendrix v. Hendrix, 65 Ind. 329; 83 Ind. 263; Humphries v. Davis, 100 Doe v. Lanius, 3 Ind. 441, 56 Am. Ind. 369. Dec. 518n; Burns' R. S. 1908, §§ 2935, ^ Burns' R. S. 1908, § 8067. 2936. " Smith V. Dodds, 35 Ind. 452 ; " McDowell v. Hendrix, 67 Ind. Schee v. Wiseman, 79 Ind. 389 ; Cun- 513 ; King v. Anderson, 20 Ind. 385. ningham v. Baxley, 96 Ind. 367; 208 INDIANA PROBATE LAW. § 147 the heirs, and becomes personally liable to them, and is bound to account to such heirs therefor.'* It has been held that such an application by an executor or ad- ministrator, of the assets and profits held by him for the heirs, is but an improper commingling of the money and business of two estates at the same time in his hands, and a consequent conversion of the money in his hands belonging to the heirs makes him per- sonally liable to them. The estate, as an entity, separate from the executor or administrator, is but a fund, an inanimate thing, in- capable of becoming a party to such conversion, and cannot be made liable for it to those whose money has been so converted. °° At common law, where the rent was payable as an entirety, and the demise was by the owner of a life estate, his death terminated the right to recover any rent at all, but this rule has been changed by statute in this state, and it is now provided that "when a ten- ant for life who shall have demised any lands shall die on or after the day when any rent becomes due and payable, his executor or administrator may recover from the under tenant the whole rent due; if he die before the day when any rent is to become due, they may recover the proportion of rent which accrued before his death, and the remainderman shall recover the residue."'® Upon the question of liability for rents the rule is laid down by one writer as follows : "Whenever an executor or administrator comes into possession of real estate by virtue of his office, '** Evans v. Hardy, Id Ind. 527; plication by the administrator of such State V. Barrett, 121 Ind. 92, 22 N. E. rents, issues and profits to the pay- 969; Trimble v. Pollock, 11 Ind. 576; ment of the debts against his dece- McClead v. Davis, 83 Ind. 263; Pea- dent's estate, does not create any cocke V. LefHer, 74 Ind. 327; Hankins claim against the estate in favor of V. Kimball, 57 Ind. 42; Rodman v. the heirs. This results from the na- Rodman, 54 Ind. 444; Hendrix v. ture of the liability the administrator Hendrix, 65 Ind. 329; Robb's Appeal, incurs to the heirs by receiving money 41 Pa. St. 45; Mills v. Merryman, 49 belonging to them; and from the Me. 65; Lucy v. Lucy, 55 N. H. 9; doctrine recognized in the cases of M'Coy v. Scott, 2 Rawle (Pa.) 222, Rodman v. Rodman, 54 Ind. 444; 19 Am. Dec. 640; Terry v. Ferguson, Hankins v. Kimball, 57 Ind. 42. 8 Port. (Ala.) 500. ^Burns' R. S. 1908, § 8069; Henry ■^^ Evans v. Hardy, 76 Ind. 527. The v. Stevens. 108 Ind. 281, 9 N. E. 356; court says in this case : "But the ap- Dorsett v. Gray, 98 Ind. 273. §148 DISPOSITION OF PERSONAL PROPERTY. 209 whether by force of statute, by order of the court, or under the terms of a will, he must charge himself with all rents, profits, and proceeds of sale arising therefrom."" The administrator of a deceased tenant cannot, by assigning the lease, relieve himself from the obligation to pay rent accru- ing after the death of his intestate. ^^ § 148. Same — As to interest and profits. — Where an ad- ministrator or executor, pursuant to some contract or arrange- ment made by the decedent before his death, or by direction of the testator in his will, or by order of the court, undertakes to carry on the business or trade of the decedent, all the proceeds and profits arising from the conduct of such business or trade must be charged to him and accounted for.^^ It is not within the general scope of his powers or authority for an administrator or executor to carry on the business of his decedent, and if he does so without the order of some proper court, or the authority of a will, he does so at his own risk, and will become personally liable for all losses sustained, while he will be required to account to the estate for all profits he may make.*^" The estate must be protected from liability at all times, and is interested in the business only to the extent of the profits.*'^ But where the executor or the administrator with the will annexed continues the business of the testator in good faith in compliance with a direction to that effect in the will, all losses by bad debts, cost of personal property purchased to replace articles worn out or consumed in conducting the business, all necessary expenses or repairs, etc., are properly chargeable against the estate.^- °' Woemer Am. Law Admin., § 513. " Rose, Estate of, 80 Cal. 166, 22 '' Carley v. Lewis, 24 Ind. 23. Pac. 86 ; In re Woods Estate, 1 Ash. "Kellar v. Beelor, 5 T. B. Mon. (Pa.) 314. (Ky.) 573; Hooper v. Hooper, 29 W. ""In re Jones, 103 N. Y. 621, 9 N. Va. 276, 1 S. E. 280. E. 493, 57 Am. Rep. 775 ; Cline's Ap- "Schouler Extrs. & Admrs. 325; peal, 106 Pa. St. 617. Lucht V. Behrens, 28 Ohio St. 231, 22 Am. Rep. 378. 14 — Pro. Law. 2IO INDIANA PROBATE LAW. § 148 The good will of a decedent's business is an asset of the estate with which an administrator may be properly charged.*'^ An administrator or executor, in so far as the dealings with the property of the decedent are concerned, is held to the strict rule of accountability applicable to other trustees, and he will not be allowed to invest his decedent's estate so as to make a profit to himself. If he should make such investment and any loss accrues by reason thereof, such loss will fall entirely upon such executor or administrator alone, and not upon the estate, while the profit, if any, upon such investment accrues to the benefit of the estate."* One who knowingly receives from a trustee the trust money or property in satisfaction of an individual debt of the trustee to him, must be regarded as participating in the fraudulent diversion of the property, and is liable to the beneficiary of the trust."^ It is not the duty of the administrator to so handle the property of his intestate as to make profit for the estate out of such prop- erty. The purpose of the law is best served by a prompt conver- sion of the assets in his hands into money and the payment of the debts and liabilities of the estate. But if interest-bearing or profit-making assets come to his hands, he must charge himself with whatever he may receive during the course of the adminis- tration in the way of dividends, interest, or profits. If, through fraud or otherwise, he should fail to account for interest on notes, "' Thompson v. Winnebago Co., 48 the trustee obtains advantages by way Iowa 155; In re Randell's Estate, 8 of personal credit and otherwise, to N. Y. S. 652. which he is not justly entitled, and "• Gilbert v. Welsch, 75 Ind. 557. good policy, with a view to the faith- "Whether a conversion of the trust ful conduct of those who are made money or property has occurred, de- trustees, requires that they should, in pends somewhat upon the intention such a case, take the risk of loss, and, of the trustee in doing the act which that there should be no inquiry per- is claimed to constitute the conver- mitted into the good faith of such sion, as well as upon the nature and transactions, the secret springs of consequences of the act, but the rule Vihich, in most cases, it would proba- which holds the trustee personally re. bly be impossible to discover." sponsible for losses incurred of "''Austin v. Willson, 21 Ind. 252; money deposited or invested in his Wallace v. Brown, 41 Ind. 436; own name, rests, as we conceive, upon Fleece v. Jones, 71 Ind. 340; Rogers different considerations. By deposits v. Zook, 86 Ind. 237. and investments in his own name. §149 DISPOSITION OF PERSONAL PROPERTY. 211 and bonds of the estate, in the absence of any showing as to the actual interest collected, the probate court should charge him with the highest legal rate during the entire time such assets were in his hands.'^ Where, for any reason, there is long delay in the settlement of an estate, an administrator is not justified in retaining money in his hands that is yielding no profit. To protect himself he should present the matter to the proper court and secure authority to invest such funds for the benefit of the estate, otherwise he is liable to be charged with interest at the legal rate on the money idle in his hands." If an administrator uses the funds of the estate in his own business, or mingles them with his own funds, he should be charged with interest thereon, some courts going to the extent of charging him with the highest rate of interest and compounding it for the whole time such funds were so used or mingled.*'^ § 149. Same — As to choses in action, money, stocks, etc. — Choses in action, rights, credits, and the like, as distinguished from chattels, are most applicable to such matters as lie in ac- tions, as debts owing the intestate. The administrator succeeds to all such rights of action against third persons as the intestate had at the time of his death, or would have been entitled to if ** Smithers v. Hooper, 23 Md. 273 ; Green, 75 Ala. 162. Where an admin- Scott V. Crews, 12 Mo. 261; Ring- istrator was held liable for interest gold V. Stone, 20 Ark. 526; Lommen on funds of the estate in his hands, V. Tobiason, 52 Iowa 665, 3 N. W. where, without sufficient excuse, he 715. had delayed making final settlement "'Hough V. Harvey, 71 111. 72. and distribution for an unreasonable Where six per cent, interest com- time. In re Danforth's Estate, 66 I\Io. pounded was charged against the ad- App. 586. ministrator because he had neglected "" Hook v. Payne, 14 Wall. (U. S.) to make annual settlements. Lloyd's 252, 20 L. ed. 887; Union Bank v. Estate. 82 Pa. St. 143, where the ad- Smith, 4 Cranch (U. S.) (C. C.) 509; ministrator was charged interest on Grigsby v. Wilkinson, 9 Bush (Ky.) $25,000 in cash which he had per- 91 ; Williams v. Petticrew, 62 Mo. mitted to lie idle for five years, there 460; Troup v. Rice 55 Miss. 278; being a suit pending on appeal in Merrifield v. Longmire, 66 Gal. 180, which the judgment and costs aggre- 4 Pac. 1176; McGloskey v. Gleason, gated less than $13,000. May v. 56 Vt. 264, 48 Am. Rep. 770. 212 INDIANA PROBATE LAW. § 149 living. The administrator is entitled to the intestate's debts of every description, whether in judgment or on contract, express or implied, written or verbal. A right to damages to the decedent's real estate, which accrued in his lifetime, is a chose in action in tlie hands of his personal representative.^^ For breaches of certain covenants the right of action is in the executor or administrator of the deceased covenantee and not in his heirs. On such covenants as run with the land the executor or administrator has no right of action unless it can be shown that there had some special damage, by reason of the breach, ac- crued to the deceased covenantee in his lifetime.'" Where the covenant, though it be one which ordinarily runs with the land, be broken and the ultimate damages for such breach accrue to the decedent in his lifetime, the right of action is in his administrator and not in the heir. The covenant having been broken and the full damages accrued during the lifetime of the covenantee, there was no covenant to run with the land and descend to the heir.'^ Stocks, bonds, patents, copyrights, annuities, mortgages, fire insurance policies and life insurance policies, when made payable to the decedent's personal representative, or to his estate, are all considered as personal property. Also negotiable paper of all kinds; debts and demands of every •" Pittsburg &c. R. Co. v. Swinney, of all the land, having a perfect title 91 Ind. 586; Church v. Grand Rapids to it, B never had, nor had he any &c. R. Co., 70 Ind. 161; Williams right to get possession of the land. Extrs., 1650. Afterwards B died, and his executor ™]\rartin v. Baker, 5 Blackf. (Ind.) instituted a suit to recover damages 232. for the breach of the 'covenant o£ "^ Frink v. Bellis, ZZ Ind. 135, 5 Am. seisin, and the only question to decide Rep. 193; Junction R. Co. v. Sayers, was whether the right to maintain 28 Ind. 318; Burnham v. Lasselle, 35 the suit was in the executor or in the Ind. 425. heir. The court held as "there was In this case A sold to B a piece no land to run or descend to the heir, of land and made a deed for the and consequently there was no cove- same, with full covenants, that of nant to run or descend to him. This seisin included, when A had no title cause or right of action survived and to convey, the title being in C, and was properly brought by the execu- he being in full and legal possession tor." §149 DISPOSITION OF PERSONAL PROPERTY, 213 description owing to the decedent, or to his estate, seats in ex- changes, trade-marks, good will in business, money, together with every species of property except freehold estates in lands, and incorporeal hereditaments issuing out of lands.'" Administrators are the representatives of the personal property of the deceased, and not of his wrongs, except so far as the wrongful act complained of was beneficial to the estate. A leasehold estate is personal property, a chattel interest, and does not descend to the heirs, but passes to the executor or admin- istrator, and he alone can maintain an action for possession, or for trespass." But a life insurance policy issued upon the life of the decedent and payable to some beneficiary named therein, other than the insured, his estate or personal representatives, does not pass to his executor or administrator as assets of the estate, but the pro- ceeds of such policy belong to the beneficiary named therein.^* Money of the decedent in his hands at the time of his death is assets in the hands of his executor or administrator; and if, as a fact, such money, or part thereof, belongs to another than the decedent, yet if it has become so far mixed with money and prop- erty of his own, before his death, as to render its identification impossible, it passes to the administrator with the mass of the estate." " Schouler Per. Prop. 22-51. 142 Mass. 248, 7 N. E. 851. In Row- '" Smith V. Dodds, 35 Ind. 452 ; ley v. Fair the court say : "Notwith- Schee v. Wiseman, 79 Ind. 389; Mc- standing the technical legal title Carty V. Burnet, 84 Ind. 23; Camp- which a township trustee takes in bell V. Hunt, 104 Ind. 210, 2 N. E. money received by him in his official 363, 3 N. E. 879. capacity, it is his duty not only to ~* Langford v. Freeman, 60 Ind. 46 ; preserve the existence, as well as the Wilburn v. Wilburn, 83 Ind. 55 ; Har- identity of each particular fund un- ley V. Heist, 86 Ind. 196, 44 Am. Rep. der his control, but to hold the 285 ; Damron v. Penn &c. Ins. Co., money so received in some suitable 99 Ind. 478; Pearcy v. Michigan &c. way ready to meet all proper de- Ins. Co., Ill Ind. 59, 12 N. E. 98, 60 mands which may arise against any Am. Rep. 673 ; ^McLean v. Equitable one of such funds, or to be conveni- &c. Ins. Soc, 100 Ind. 127, 50 Am. ently delivered to his successor, either Rep. 779. upon his death or the expiration of " Rowley V. Fair, 104 Ind. 189, 3 N. his term. This is a rule of general E. 860; Attorney-General v. Brigham. application in the execution of all 214 INDIANA PROBATE LAW. § I50 Certificates of stock are not securities for money in any sense, much less are they negotiable securities. They are simply the minutes and evidence of the holder's title to a given share in the property and franchises of the corporation of which he is a member. ^"^ Dividends which have accrued upon stocks before the de- cedent's death belong to the executor or administrator though such dividends were not declared until after the death of such decedent. ^^ Administrators and executors will be held to a reasonable care with respect to a decedent's property which comes into their hands, or under their control, and they should adopt such precau- tions against loss by fire, flood, or waste of any kind, and exercise such forethought for the security of such property as prudent men are accustomed to employ in reference to their own prop- erty.'^^ § 150. Same — Property fraudulently conveyed. — It seems settled that when a debt cannot be coercively collected out of property, a fraudulent transfer of that property cannot be inter- fered with by a creditor. The property must be such as can be reached by an execution or the transfer will not be set aside. Such transfer can only be assailed by creditors, or for the benefit trusts, whether public or private." decedent at the time of his death, are And, "When, however, the money re- personal property and descend to the ceived by the deceased trustee has heirs at law, subject to the right of been so far converted by him in his the administrator to subject the same lifetime as to render its identification to sale in the manner prescribed by as the property of the township im- the laws of the state. Citizens' &c. practicable, the administrator is not Ry. Co. v. Robbins, 128 Ind. 449, 26 required, and ought not to be per- N. E. 116, 25 Am. St. 445, 12 L. R. mitted, to deliver over to the successor A. 498. of such trustee money which may " Welles v. Cowles, 4 Conn. 182, have been derived from other sources, 10 Am. Dec. 115; Johnson v. Bridge- to make good the money so converted, water &c. Mfg. Co., 14 Gray (Mass.) except in payment of an allowance 274. regularly made against the estate." '^ Rubottom v. Morrow, 24 Ind. 202, '" Mechanics' Bank v. New York 87 Am. Dec. 324 ; Cooper v. Williams, &c. R. Co., 13 N. Y. 599. Shares of 109 Ind. 270, 9 N. E. 917. stock in a corporation, owned by the § 151 DISPOSITION OF PERSONAL PROPERTY. 21 5 of creditors, for, as between the parties to a fraudulent transfer of property, it is valid and binding.'^ For this reason an admin- istrator would have no right to maintain an action to set aside a fraudulent assignment or transfer of property made by his de- cedent in his lifetime, merely for the purpose of recovering such property for distribution to the heirs.^^ But the administrator as trustee for the creditors, in his fidu- ciaiy capacity, can maintain such an action. A man has no right to give away his assets to his friends or relatives, without reserv- ing property enough to pay his just debts; therefore, any trans- fer, assignment or conveyance of personal property made with intent to cheat, hinder or delay creditors, will be regarded as fraudulent, and may be set aside by the executor or administrator for the purpose of subjecting such property to the uses of the estate. The requisites of a complaint in such an action are the same as for a complaint by an executor or administrator to set aside a fraudulent conveyance of real estate. ^^ As such fraudulent transfer of property is good as between the parties thereto and their heirs or representatives and binding upon all persons except creditors of the decedent, any excess in the administrator's hands derived from property fraudulently transferred and recovered by him, after the payment of creditors, must be restored to the fraudulent vendee from whom the prop- erty was taken. It is not proper to distribute it to the heirs of the fraudulent vendor.^" § 151. Mortgages as personal property. — When any mort- gagee of real estate, or any assignee of such mortgagee, shall die without having foreclosed the equity of redemption or having received payment of the amount secured by such mortgage, the "Cox V. Hunter, 79 Ind. 590; Mikals, 11 Ind. 227; Garner v. Graves, Bruker v. Kelsey, 12 Ind. 51; Baugh 54 Ind. 188; Martin v. Root, 17 Mass. V. Boles, 35 Ind. 524; Sherman v. 222; Bate v. Graham, 11 N. Y. 207; Hogland. 1Z Ind. 472. Woerner Am. Law Admin., § 296. '"Hess V. Hess, 19 Ind. 238; Law '" Burtch v. EIHott, 3 Ind. 99; Bank V. Smith, 4 Ind. 56. v. Burke, 4 Blackf. (Ind.) 141; Ro- " Johnson v. Jones, 79 Ind. 141; chelle v. Harrison, 8 Port. (Ala.) 351 ; Cox V. Hunter, 79 Ind. 590; Love v. McLean v. Weeks, 61 Me. 277. 21 6 INDIANA PROBATE LAW. § 15I mortgaged premises, and the debt secured thereby, shall be con- sidered as personal assets in the hands of his executor or admin- istrator, and shall be administered and accounted for as such, and such executor or administrator shall have the same right to pos- session of the mortgaged premises, and to bring any suit respect- ing the same, or for the recovery of the debt secured thereby, and to execute or carry into effect any act or power contained in such mortgage, or in the provisions of any law, as such mortgagee or assignee could if he were alive.^' Where, in any such case, the mortgage is redeemed, or the debt secured thereby is paid, the money shall be received by the executor or administrator, and he shall thereupon release and discharge the mortgage.** If the mortgaged premises shall have been taken possession of, under the mortgage, by the executor or administrator, or by the deceased, the executor or administrator shall hold the same in trust for the creditors, heirs or other persons entitled to the money upon the sale or redemption of the premises. *° Deeds of trust in favor of a decedent would likely pass under these statutes to his executor or administrator.*" If land of a decedent has been sold by an executor or adminis- trator, and a mortgage from the purchaser taken to secure the purchase-money, upon a foreclosure of such mortgage, and a recover^' of the land thereunder, the land so recovered does not pass to the heirs, but remains as assets of the estate in the hands of the executor or administrator.*^ Under these statutes an executor or administrator is the proper party to enforce the mortgage by foreclosure or otherwise. The power to assign the mortgage is also his.** The statute above, § 2782, gives executors and administrators authority to release and discharge mortgages when the debts secured thereby have been paid, and where such officer, acting ** Burns' R. S. 1908. § 2781. ministrator. Evans v. Enloe, 70 Wis. ** Burns' R. S. 1908, § 2782. 345, 34 N. W. 918, 36 N. W. 22. *= Burns' R. S. 1908, § 2783. '^ Burns' R. S. 1908, § 2783; Yon- *= Williams v. Ely, 13 Wis. 1 ; Clark kers Sav. Bank v. Kingsley, 78 Hun V. Blackington, 110 Mass. 369. A ven- 186, 28 N. Y. S. 925. dor's lien for purchase money in fa- ** Gibson v. Bailey, 9 N. H. 168; vor of the decedent goes to his ad- Crooker v. Jewell, 31 Me. 306. g 152 DISPOSITION OF PERSONAL PROPERTY. 2.1 J under this statute, has made the proper and formal release of a mortgage, which shows that the debt has been fully paid and satisfied, and such instrument duly placed of record, subsequent mortgagees or purchasers have a right to rely upon such record without further inquiry.*^ An administrator cannot enter a release and satisfaction of a mortgage when it has not been paid. Such action of his is not binding either upon the heirs or creditors.®" § 152. Same — Common-law rule. — At common law the mortgagee was entitled to the immediate possession of the mort- gaged premises unless there was an agreement between the parties that the mortgagor shall remain in possession. In the absence of such covenant the mortgagor was considered as holding posses- sion by the sufferance merely of the mortgagee, and was, there- fore, not entitled to notice before ejectment might be brought against him, and such action might be maintained by the execu- tor or administrator of the mortgagee in the absence or non- residence of the heirs."^ The rule in this state has been reversed by statute, and now, unless a mortgage specially provides that the mortgagee shall have possession of the premises mortgaged, he shall not be entitled to such possession,®^ But the statute under consideration confers a wider power upon executors or administrators of mortgagees in relation to the mortgaged prem- ises than was theirs at common law. Under this statute an executor of a deceased mortgagee may maintain suit upon the notes and mortgages given to his testator, although they may have been specifically bequeathed. Such notes and mortgages are part of the personal estate of the testator, and as such belong to his executor for the purposes of administration and distribu- tion. The legatee is not entitled to the property, and has no authority to take possession of a legacy without the assent of the executor, although the testator, in his will, expressly direct that he shall do so. The reason for this is that if it were permitted, a '" Connecticut &c. Ins. Co. v. Talbot, *° Talbott v. Dennis, 1 Ind. 471. 113 Ind. nZ, 14 N. E. 586, 3 Am. St. *^Doe v. Mace, 7 Blackf. (Ind.) 2. 655. •^Burns' R. S. 1908, § 1133. 2l8 INDIANA PROBATE LAW. 153 testator might thus bequeath all his effects in fraud of his cred- itors."^ An administrator may, on behalf of the estate, redeem from sheriff's sale land which has been sold on a judgment which is prior to a mortgage upon the same lands, owned and held by his decedent. °* § 153. Contracts in consideration of marriage. — A prom- ise of marriage will support a grant, or the transfer of personal property; it is regarded as a valuable consideration. It is said that "marriage is regarded as one of the strongest considerations in law, either to raise a use or to found a contract, gift, or grant.""" For this reason contracts transferring property, or re- leasing or waiving rights in property, in consideration of mar- riage are favored in law, and are placed on an equal footing with those supported by an adequate consideration in money."*' This is more particularly true of what are known as ante- nuptial contracts. The rule as to post-nuptial contracts is not so liberal. But even post-nuptial settlements are valid and binding as to the parties and those who claim under or through them, and in the absence of fraud will be good even as against creditors."' They will, however, be deemed fraudulent if the debts of the party making the settlement were considerable at the time of making the settlement, and the rights of creditors thereby de- feated,"* it being the rule that a conveyance, transfer, or gift, from a husband to his wife without consideration is void as against existing creditors though no fraud was actually in- tended."" But, in general, debts subsequently incurred will not defeat a post-nuptial settlement, nor will the presumption of ''Crist V. Crist, 1 Ind. 570, SO Gray, 36 Miss. 510; Gardner v. Baker, Am. Dec. 481n. 25 Iowa 343; Clayton v. Brown, 30 °* Mitchell V. Hodges, 87 lad. 491. Ga. 490. "* Parsons on Contracts, 554. "'Reynolds v. Lansford, 16 Tex. °*Bunnel v. Witherow, 29 Ind. 123. 286; Borst v. Corey, 16 Barb. (N. Y.) "'Barker v. Koneman, 13 Cal. 9; 136; Belford v. Crane. 16 N. J. Eq. Brackett v. Waite, 4 Vt. 389; Sims 265, 84 Am. Dec. 155; Filley v. Regis- V. Rickets, 35 Ind. 181, 9 Am. Rep. ter, 4 Minn. 391, 11 Am. Dec. 522. 679; Moore v. Page, 111 U. S. 117, ''' Robinson v. Clark, 16 Me. 493; 28 L. ed. Ill, 4 Sup. Ct. 388; Ber- Watson v. Riskamire, 45 Iowa 231; trand v. Elder, 23 Ark. 494; Wiley v. Woodson v. Pool, 19 Mo. 340. S 154 DISPOSITION OF PERSONAL PROPERTY. 219 fraud arise if the debts were inconsiderable, and even if consid- ■erable if the debtor had other means with which to pay them/ Persons contemplating marriage may enter into contracts by which each surrenders all claims upon the property of the other after death; or such ante-nuptial agreements may specify par- ticularly the property each shall take from the estate of the other after death, and where this is done the executor or administrator of either need not charge himself with the property affected or transferred by such ante-nuptial settlement.^ The widow's allow- ance of five hundred dollars may be released by such contract.^ But it will not bar her from claiming a bequest made to her in her husband's will;* nor is the liability of the husband for neces- saries for his wife affected by such a contract.^ An ante-nuptial contract which determines the rights of a husband and wife in the property of each other is not to be construed as a settlement or jointure within the meaning of the statute, §§ 3038 and 3039, 1908.'' § 154. Title to and power over personal property. — After an executor or administrator has been appointed and qualified, the title and possessory rights in, and to, the personal property and choses in action of his decedent pass to and vest in such executor or administrator.'^ At common law an executor or administrator had the same property in, and the same powers over, the personal estate of the decedent, that such decedent had at and before his death. Lord ' Brookbank v. Kennard, 41 Ind. ^ Buffington v. Buffington, 151 Ind. 339; Gridley v. Watson, 53 111. 186; 200, 51 N. E. 328. Stephenson v. Donahue, 40 Ohio St. ' Blake v. Blake, 15 Ind. App. 492, 184; Lloyd v. Fulton, 91 U. S. 479, 44 N. E. 488. 23 L. ed. 363. ' Scott v. Carothers, 17 Ind. App. ' Houghton V. Houghton, 14 Ind. 673, 47 N. E. 389. 505, 77 Am. Dec. 69 ; McNutt v. Mc- ' Kennedy v. Kennedy, 150 Ind. 636, Nutt, 116 Ind. 545, 19 N. E. 115, 2 50 N .E. 756; Repp v. Lesher, 27 Ind. L. R. A. 372n ; Leach v. Rains, 149 App. 360, 61 N. E. 609. Ind. 152, 48 N. E. 858; Kennedy v. 'Smith v. Ferguson. 90 Ind. 229, Kennedy, 150 Ind. 636, 50 N. E. 756; 46 Am. Rep. 216; Walpole v. Bishop, Moore v. Harrison, 26 Ind, App. 408, 31 Ind. 156. 59 N. E. 1077; Woerner Am. Law Admin., § 287. 220 INDIANA PROBATE LAW. §154- Mansfield laid down the following as the rule: "The general rule both of law and equity is clear, that an executor may dispose of the assets of the testator; that over them he has absolute power, and that they cannot be followed by the testator's cred- itors."^ And the law is that an administrator has the same prop- erty in, and the same powers over, the personal estate of his decedent, as an executor, because, after administration has been granted, the power of an administrator is equal to, and with, the power of an executor." The common law, where not inconsistent with the constitution and statutes of this state, or of those of the United States, has always been the law of this state, and is yet where not abrogated or changed by legislative enactment. Whether an administrator or executor has the same absolute power over the personal property of his decedent in this state as at common law is a question which, from the decisions of the Supreme Court, appears yet somewhat in doubt. The court has, however, shown some disposition to limit or restrain the power of executors or administrators over the personal property of the decedent.^" The law does not enlarge the rights of an administrator be- yond the rights of the deceased if he were alive, but the adminis- trator stands as the representative of the deceased, in his place and in his stead, with no greater or no less power." In the case of Weyer v. Second Nat. Bank, 57 Ind. 198, on page 206, the court says: "It is clear to our minds, that our statute providing for the settlement of decedents' estates, and our statute regulating descents, are both repugnant to and inconsist- ent with the common-law doctrine of the absolute property of an executor or administrator in, or of his absolute power over, the personal effects or estate of his decedent. Where this repug- nancy or inconsistency exists, of course the statute must prevail ' Whale V. Booth, 4 T. R. 625, " Hatfield v. Mahoney, 39 Ind. App. note a. 499, 79 N. E. 408, 1086; Owen Creek ' Williams Exrs., 6 Am. Ed., p. 992. Presby. Church v. Taggart, 44 Ind. ^"Fleece v. Jones, 71 Ind. 340; Rog- App. 393, 89 N. E. 406. ers V. Zook, 86 Ind. 237 ; Thomasson V. Brown, 43 Ind. 203. -g 155 DISPOSITION OF PERSONAL PROPERTY. 221 and constitute the law. Here, the personal property of a de- cedent is the property of such decedent's estate, and, at most, his executor or administrator has but a quahfied power over such property. He may sell such personal property it is true, but he must sell the same at public auction, and cannot sell it otherwise, unless, upon application to the proper court, he obtains an order authorizing a private sale. His position or office of executor or administrator confers on him no other power or authority over his decedent's estate than the law, under which he holds his office or position, confers. And, if further power or authority over said estate is desired or necessary for any purpose, such executor or administrator can only obtain the same by an order of the court by which he was appointed, in a proper case, to be shown by his verified petition, and other proof if required. So the law is and has been written in this state for more than thirty years past ; and so, we think, it ought to be construed in the interest of every citizen and of those who are to come after him. The estates of the dead are a trust to the courts, and every legal safe- guard to their proper administration ought to be faithfully sus- tained." § 155. Same — As to promissory notes, debts, etc. — As to negotiable instruments belonging to the decedent and debts due and owing to him, the rule is, as to this species of property, that the power of an executor or administrator is little changed from what it was at common law. In the case of Latta v. Miller, 109 Ind. 302, 10 N. E. 100, the court says: "The common-law rights and powers of an executor or administrator over promissory notes, bills of exchange, or other evidences of debt, belonging to the decedent's estate, so far as we are advised, have never been changed or restricted even by statute in this state, but have often been recognized in the decisions of this court." The court in this case goes further and says that "the only restraint upon the com- mon-law rights and powers of an executor or administrator, in or over promissory notes and other evidences of debt, belonging to the decedent's estate, is imposed not by statute in this state, but by the decisions of this court." In another case, this court says: 2.22 INDIANA PROBATE LAW. § 1 56 "The executor has in this state a general, and in many respects an absohite, power over the debts due the estate of his testator. When done without fraud or collusion he may assign or release such debts and may exercise general acts of ownership over them, in regard to their security or collection, subject only to his lia- bility on his bond for any loss which may occur by reason of his mismanagement of such debts.'"- And it has often been held that an executor or administrator may transfer, by his indorse- ment, promissory notes payable to his decedent, so as to vest the absolute title thereto in his assignee. ^^ While these decisions draw a line of distinction between the two classes of a decedent's personal property, and in one class limit the power of an executor or administrator as to its control and disposition, while in the other class his power remains as general and absolute almost as at common law, it is difficult to perceive why the rule of limitation should not be applied to both classes alike. Just why an executor or administrator should have absolute power under proper circumstances, to assign, sell, trans- fer, or extend the time for payment of promissory notes, bills of exchange, or other evidences of debt due to the decedent, and should not have such power as to other personal property of the estate, is a point not made clear by the court's decisions. The administrator represents the person of his intestate in re- spect to his personal estate, all of which, as a rule, vests in the administrator on the grant of letters of administration. The in- terest, however, which the administrator has in such personal estate, is only temporary and qualified. § 156. Same — Right to sue. — It is the general doctrine of the law in this state that the executor or administrator of a de- cedent can alone sue for and recover the personal property owned by such decedent at the time of his death.'* There is, however,, '' Underwood v. Sample, 70 Ind. v. Zook, 86 Ind. 211 ; Ditmar v. West, '^-^6■_ 7 Ind. App. 637, 35 N. E. 47. '" Douglass V. McCarer, 80 Ind. 91 ; Pond V. Sweetser, 85 Ind. 144; Finne- gan V. Finnegan, 125 Ind. 262, 25 N. ■Thomas v. Reister, 3 Ind. 369 Hamrick v. Craven, 39 Ind. 241 Thomasson v. Brown, 43 Ind. 203 Krutz V. Stewart, 76 Ind. 9; Rogers E. 341 § 156 DISPOSITION OF PERSONAL PROPERTY. 223 one exception to this rule, viz. : Where an intestate dies, leaving no debts to be paid, and no administration is had upon his estate, his heirs at law may sue for a debt owing to such decedent at the time of his death/^ Where the heirs of a creditor sue for the debt the complaint should aver every fact necessary to give them a right of action and to recover the money. It is not sufficient to show that there are no debts to be paid. The complaint must show by its averments that the heirs suing are entitled to the money. For this reason it is necessary to aver the non-existence of debts. It must also aver that no administration had been granted upon the estate, and that no widow of the decedent was left to claim any portion of the estate, or that she had received or relinquished the amount due her under the law. It is essential to allege all these facts to give the heirs the right of action ; and on the trial they must all be proven to authorize a recovery.^" From the granting of letters to the executor or administrator the personal property and choses in action of the deceased are in a sense in the custody of the law and subject to the orders and "Ferguson v. Barnes, 58 Ind. 169; hand, it is contended by the appellee Finnegan v. Finnegan, 125 Ind. 262, that it is sufficient to allege that Pat- 25 N. E. 341 ; Schneider v. Piessner, rick Finnegan died intestate, leaving 54 Ind. 524. no widow, and that the debts due " Schneider v. Piessner, 54 Ind. 524 ; from his estate at the time of his Finnegan v. Finnegan, 125 Ind. 262, death have all been paid. An exam- 25 N. E. 341; Moore v. Board, 59 ination of the adjudicated cases in Ind. 516; Williams v. Williams, 125 this state will disclose the fact that Ind. 156, 25 N. E. 176; Westerfield no complaint of the class now under V. Spencer, 61 Ind. 339; Begien v. consideration has ever been held suf- Freeman, 75 Ind. 398; Waltz v. ficient without an allegation that no Waltz, 84 Ind. 403 ; Williams v. Riley, letters of administration had been 88 Ind. 290; State v. Sanders, 90 Ind. granted upon the estate of the de- 421 ; Humphries v. Davis, 100 Ind. ceased." Stebbins v. Goldthwait, 31 369. In Finnegan v. Finnegan, 125 Ind. 159 ; ]^Iitchell v. Dickson, 53 Ind. Ind. 262, 25 N. E. 341, the court says : 110; Martin v. Reed, 30 Ind. 218; "It is contended by the appellant Bearss v. Montgomery, 46 Ind. 544; that the complaint is radically defect- Ferguson v. Barnes, 58 Ind. 169. In ive, in that it fails to allege that no such an action by the heirs the com- letters of administration have been plaint must allege every fact neces- granted on the estate of Patrick Fin- sary to give a right of action to re- negan, deceased, to whom the notes cover the debt for which the action in suit were executed. On the other is prosecuted. 224 INDIANA PROBATE LAW. § 1 57 control of the court. To pennit the heirs to prosecute actions for the recovery of debts due to the ancestor while there was an act- ing executor or administrator would result in the utmost confu- sion. Persons indebted to the estate would be at a loss to know who was entitled to receive and receipt for the money due the estate, and the court would, in many cases, experience much difficulty in ordering a proper distribution, the amount due to each heir depending upon the amount collected by those entitled to the estate.^' Executors and administrators hold the property of the estate in trust for the creditors and others interested therein,^^ and until the debts of the estate are all paid the executor or adminis- trator has a claim to the assets of such estate superior to that of the heirs ;^^ but the rights of such executor or administrator are not greater than were those of his decedent while living, and property that such decedent could not have claimed in his life- time cannot be recovered by his executor or administrator.-" § 157. The inventory and appraisement. — The making of a correct inventory and a proper appraisement of all the personal assets of his decedent is one of the first and most important duties imposed by law upon an executor or administrator. This duty is imposed by statute in every state, and a failure to perform it constitutes a breach of the administration bond. When the settlement of estates was within the jurisdiction of the ecclesi- astical courts, the ancient law was very strict with respect to the making of inventories.-^ An executor or administrator can be required to inventory " Finnegan v. Finnegan, 125 Ind. make an inventory, and nevertheless 262, 25 N. E. 341. presume to administer the goods of " Judah V. Brandon, 5 Blackf. the deceased, he may be punished at (Ind.) 506; Barton v. Bryant, 2 Ind. the discretion of the bishop or ordi- 189; North Western Conference v. nary. The reason is, lest the execu- ]\Iyers, 36 Ind. 375. tor being disposed to deal unfaith- '° Bearss v. Montgomery, 46 Ind. fully, should defraud the creditors or 544; Hamrick v. Craven, 39 Ind. 241; legataries, by concealing the goods of Coquillard v. French, 19 Ind. 274. the deceased." Swinburne on Wills, =" Garner v. Graves, 54 Ind. 188. pt. 6, § 6. "^ "And if any executor refuse to 8 157 DISPOSITION OF PERSONAL PROPERTY. 225 only the property which belonged to the decedent at the time of his death, in his own right, or to which the executor or adminis- trator is entitled in his official capacity. He cannot be compelled to inventory property not clearly belonging to the estate. Nor is he to be the sole judge of what shall be inventoried, it being held that the ultimate determination must rest with the court. If an executor or administrator should refuse to inventory any prop- erty the court would be powerless to administer on the estate unless it had power to compel an inventory. No inventor)^, of course, can be made where no property comes to the knowledge of the executor or administrator, but he should nevertheless file some kind of showing in lieu of inventory for the information of the court and interested parties. " The chief purpose of making and filing an inventory is to in- form the court having jurisdiction of the estate, and all persons interested therein, just what property belongs to such estate, and it also furnishes a basis from which to estimate the liability of an administrator or executor. ^^ While it is the duty of an executor or administrator to in- ventory all the personal property of his decedent which comes to his knowledge, whether such property is in his possession or in the possession of another, and also to inventory all property claimed by another which is found among the assets of the estate, which does not clearly appear to belong to the deceased, yet if property so claimed is clearly distinguishable from the mass of the property of the estate it need not be inventoried.^* Nor can he be compelled to inventoi*y property which he knows to belong to another, although such property may have come to his hands as administrator with other assets of the estate.^^ ^ In such case a failure to make an ^ Moore v. Holmes, 32 Conn. 553. inventory constitutes no breach of the ^ Rowley v. Fair, 104 Ind. 189, 3 bond. Toledo &c. R. Co. v. Reeves, N. E. 860; Prescott v. Ward, 10 Al- 8 Ind. App. 667, 35 N. E. 199; Hall len (Mass.) 203; McNeel's Estate, v. Bramble, 2 Dak. 189; Walker v. 68 Pa. St. 412; Bourne v. Stevenson, Hall, 1 Pick. (Mass.) 20; Simms v. 58 Me. 499. Guess, 52 111. App. 543 ; Snodgrass v. ^ Snodgrass v. Andrews. 30 Miss. Andrews, 30 Miss. 472, 64 Am. Dec. 472, 64 Am. Dec. 169. 169; Woerner Am. Law Admin., § 317. 15— Pro. Law. 226 INDIANA PROBATE LAW. § 1 58 § 158. Inventory, statutory requirements. — Every execu- tor or administrator, within sixty days after his appointment, shall make out a true and complete inventory of the personal estate of the decedent which shall have come to his knowledge, including all debts, demands, stocks, moneys and goods due to and owned by the decedent at his death, and all emblements and annual crops raised by labor, whether severed from the land or not at the time of his death. The inventory shall be made out in two parts, as follows : The debts, demands, stocks and moneys shall be inventoried separately from the goods of the deceased. The inventor}^ thereof shall be on printed blanks, furnished as hereinafter provided, and shall, as far as practicable, exhibit in the appropriate columns, under the proper headings, the number of the debt or other item, name of the debtor, kind of claim, principal sum, date thereof, rate and commencement of interest, dates and amounts of credits, and appraised value. When the amount due upon the claim rests in computation, the amount due on the claim as inventoried shall be taken as the appraised value. If the claim is for unliquidated damages, or based upon a con- tract obligating the person executing the same to the performance of anything other than the payment of money, it shall be ap- praised at its fair cash value, and so noted in the inventory. The claims and items so inventoried, as aforesaid, shall be num- bered in the margin of the inventory from one upward, progres- sively. The goods, emblements and annual crops of the decedent shall be inventoried in detail upon printed blanks furnished for that purpose, as aforesaid. Such inventory shall contain printed headings for the number, kind and quantity of goods, and ap- praised value, and the items shall be numbered from one upward, progressively.-*' And when real estate is devised to executors, or ^ Burns' R. S. 1908, § 2777. posed by this statute is not one to be It is said "the great object of this dispensed with by the terms of the highly important requirement of the will. Potter v. McAlpine, 3 Dem. law regarding an inventory, is to en- (N. Y.) 108. The failure to file an able the judge of probate and the par- inventory, while it is a breach of the ties in interest to know what prop- bond, yet it does not render adminis- erty belongs to the estate." Moore v. tration void. Cooper v. Horner, 62 Holmes, 32 Conn. 553. The duty im- Texas 356; Phelan v. Smith, 100 Cal. §158 DISPOSITION OF PERSONAL PROPERTY. 22/ directed by the will to be sold for the payment of debts or lega- cies, the same shall be included in the inventory, and appraised at its trne value by the appraisers. ^^ The statute requires the property inventoried to be itemized, and when not so done the inventory should be rejected. If, in making an inventory, an item should be inserted by mistake it may be stricken out. As a general rule, the real estate of a decedent need not be in- ventoried and appraised. The exception is found in the above statute. An inventoiy which has been taken for the purpose of discovering whether or not an estate exceeds five hundred dollars in value, with intention to avoid an administration thereon, does not dispense with the inventory required by this statute if an administrator should be appointed for the estate.-^ A failure to make out and return proper inventories is good cause for the re- moval of an executor or administrator.^^ And the return of a false inventory will be such fraud as to furnish good grounds for setting aside the final settlement of an executor or administrator guilty of the fraud. ^° 158, 34 Pac. 667; Bourne v. Steven- 35 IMiss. 696, 72 Am. Dec. 153; Wil- son, 58 Me. 499. The presumption is Hams v. Mower, 29 S. Car. 332, 7 S. that the inventory contains all of the E. 505. And an item inserted by mis- property of the estate, and the wilful take may be stricken out. In re omission of anything therefrom is a Payne, 78 Hun 292, 28 N. Y. S. 911. fraud. McNeel's Estate, 68 Pa. St. The following note from Woerner's 412; In re Mullon, 74 Hun 358, 26 Am. Law Admin., page 704, is inter- N. Y. S. 683; Ini re Palmer, 3 Dem. esting as showing the need of a de- (N. Y.) 129. tailed inventory: "Such items as, =" Bums' R. S. 1908, § 2780. 'cash, bonds, notes, etc., $13,993.06,' ^ Pace V. Oppenheim, 12 Ind. 533. 'household goods and kitchen furni- =» Burns' R. S. 1908, § 2762. ture, $298.00,' 'horses, cows, and The failure of an administrator to swine, $268.00,' do not, strictly speak- make an inventory of a claim due ing, constitute an inventory, but from him to the estate is not material rather an abstract or compendmm of to the liability of his sureties, unless one. 'Surrogates would do nght^ to actual damage resulted therefrom, reject such papers as inventories. State V. Gregory, 119 Ind. 503, 22 N. They often work injury to creditors £ I and legatees, and sometimes involve "'•West V. Reavis, 13 Ind. 294. The executors and administrators in seri- inventory concludes no one. Mistakes ous difficulty. In fact, it is impossible may be shown therein. Lewis v. Lusk, to settle any estate with intelligence 228 INDIANA PROBATE LAW. § 159 § 159. What the inventory should include. — The inven- tory shall include all the personal property of the decedent, whether such property was in the possession of the decedent at his death or in the possession of another. ^^ But property belong- ing to another in the possession of the decedent clearly distin- guishable from the property of the estate need not be inven- toried.^- All property coming to the knowledge of the executor or ad- ministrator which he has good reason to believe belongs to the estate of the decedent should be inventoried, even his own in- debtedness to the estate. ^^ A leasehold for a less term than life is personal property and should be included in the inventory.^* So also all animals wild bv nature which are so confined as to be and accuracy without other aids than they furnish' : Vanmeter v. Jones, 3 N. J. Eq. 520, 558. A more emphatic il- lustration of the necessity of accurate and detailed inventories is found in Pursel V. Pursel, 14 N. J. Eq. 514. 'The whole difficulty', says the ordi- nary, in delivering the opinion of the prerogative court, 'has grown out of the defective character of the inven- tory, and exhibits in a striking point of view the impropriety of suffering such inventories to be filed. * * * They do not answer the design of the law. They fail to furnish to parties the very information which they were •designed to supply. They often lead, as in this case, to useless litigation, imperil the rights of parties, impose upon courts the painful duty of grop- ing for the truth in the dark, or of de- ciding by uncertain and unreliable tests of truth. The court below were misled entirely by the defects and vir- tual misrepresentations of the inven- tory, and this court was saved from falling into the same error mainly by exhibits offered on the part of the ex- ceptant. In this case, it is true, the loss of the mistake would have fallen where it justly belonged, on the head of the party guilty of the negligence that occasioned it. But it falls, it is to be feared, too often upon unsus- pecting heirs and confiding relatives who are made the victims of the care- lessness or fraud which covers up the real truth under the shelter of general and unintelligible inventories. * * * I feel it my duty to protest earnestly against the practice, not only from the embarrassment it has occasioned in this particular case, but because I re- gard it as a fruitful source of litiga- tion, and as opening a wide door to fraud and injustice. Justice requires that in all cases the requirements of the statute should be strictly complied with.' " ^ Pursel V. Pursel, 14 N. J. Eq. 514; McNeel's Estate, 68 Pa. St. 412; Bourne v. Stevenson, 58 Me. 499. "Prescott v. Ward, 10 Allen (Mass.) 203; Trecothick v. Austin, 4 Mason (U. S.) 16. ^ State V. Gregory, 119 Ind. 503, 22 N. E. 1; Sherman v. Page, 85 N. Y. 123; Weems v. Bryan, 21 Ala. 302. " McCarty v. Burnet, 84 Ind. 23. § 159 DISPOSITION OF PERSONAL PROPERTY. 229 in the immediate possession of the decedent, as tame pigeons, doves in a dove-cote, deer, rabbits, pheasants, partridges, ani- mals kept in a room or cage, fish in a box, tank, or net ;^' but if such animals are roaming at v^ill in a park, not tamed or re- claimed from their wild state, or fish in a pond, they do not belong to the administrator.'" The administrator should inventory all the property he may find among the eflfects of the decedent if he does not know such property to belong to another, and if property belonging to an- other is so inventoried and sold in good faith, the true owner cannot reclaim it, but must seek his remedy by a claim against the estate." All personal property of every description belonging to a de- cedent's estate must be inventoried by his executor or adminis- trator, but such executor or administrator cannot be charged with neglect for a failure to inventory property of the estate which never came to his knowledge.'' The debt of an administrator to his decedent is to be accounted for as other debts or assets of the estate, and the failure of the administrator to make an inventory of such claim due from him to the estate is not material to the liability of his sureties unless actual damage followed because of such failure.^^ All leasehold estates of realty should be inventoried, as they are classed as personal property.*" " Buster V. Newkirk, 20 Johns. (N. testator, and it afterward becomes Y.) 75; Pierson v. Post, 3 Caine (N. necessary to show the amount of such Y.) 175, 2 Am. Dec. 264; Common- property, parol proof is admissible, wealth i-. Chace, 9 Pick. (Mass.) 15, Smith v. Smith, 76 Ind. 236. 19 Am. Dec. 348. ^ Where a person at the time of his "'Ferguson v. Miller, 1 Cow. (N. appointment as administrator is in- Y.) 243, 13 Am. Dec. 519. debted to the estate, he should inven- "Waterhouse v. Bourke, 14 La. tory and charge himself with the debt; Ann. 358; Mulford v. Mulford, 40 N. but if he fails to account for the same J. Eq. 163. his sureties are not liable, if they show "^ State V. Scott, 12 Ind. 529 ; State that he was insolvent, beyond the V. Bennett, 24 Ind. 383. Where all amount that could have been saved to the parties' interested in a decedent's the estate by the exercise of diligence, estate agree upon a settlement and dis- State v. Gregory, 119 Ind. 503, 22 N. tribution under a will, without any in- E. 1. ventory of the personal estate of the ^^ Schee v. Wiseman, 79 Ind. 389; 230 INDIANA PROBATE LAW, § 1 59 Such crops as are growing upon the land at the death of the decedent should be inventoried.^^ Crops, however, which have been sown after the death of the decedent should not be inventoried.^" Bank deposits, choses in action, and judgments belonging to and in favor of the decedent should be inventoried/^ A judgment for alimony in favor of a divorced wife upon her death goes to her administrator.'* If the decedent was interested in a firm as a partner, it will not be necessary for his executor or administrator to inventory such partnership interest, because he can exercise no control over it until the partnership atYairs have been settled by the surviving partner, and then his right of possession and control will extend to only such portion of such deceased partner's interest as re- mains in the hands of the surviving partner after the payment of all the partnership debts. The inventory should, however, refer to such partnership interest, and describe its character and loca- tion, without attempting to give any detailed or itemized state- ment of the property composing such interest.*' An administrator has no right to carry on a partnership busi- ness in the place of his decedent who was a partner therein, nor has an executor any such right unless specially authorized to do so by the will of his testator." Campbell v. Hunt, 104 Ind. 210, 2 N. v. French, 59 Miss. 632 ; Hart v. Ang- E. 363, 3 N. E. 879. er, 38 La. Ann. 341. If the partnership " Humphrey V. Merritt, 51 Ind. 197; is continued according to the terms Miller v. Wohlford, 119 Ind. 305, 21 of a will, the effect is to create a new N. E. 894. partnership, and the creditors of the ■""Rodman v. Rodman, 54 Ind. 444; new firm have no claim upon the gen- Kidwell V. Kidwell, 84 Ind. 224. eral estate of the deceased — only on so "Highnote v. White, (H Ind. 596; much of it as is invested in the part- Morris V. Buckeye &c. Co., 78 Ind. 86. nership business. Pitkin v. Pitkin, 7 " Miller V. Clark, 23 Ind. 370. Conn. 307, 18 Am. Dec. Ill; Stan- ^' Loomis V. Armstrong, 63 Mich, wood v. Owen, 14 Gray (Mass.) 195; 355, 29 N. W. 867; Valentine v. Wy- Vincent v. Martin, 79 Ala. 540. It is sor, 123 Ind. 47, 23 X. E. 1076, 7 L. R. optional with the executor or admin- A. 788n. istrator to carry on the business even ^ Burwell v. Cawood, 2 How. (U. where an apparent duty is imposed by S.) 560, 11 L. ed. 378; Smith v. Ayer, the will. Edgar v. Cook, 4 Ala. 588; 101 U. S. 320, 25 L. ed. 955 ; Brasfield Wild v. Davenport, 48 N. J. L. 129, 7 i6o DISPOSITION OF PERSONAL PROPERTY. 231 All patents, copyrights or extensions of either are personal property and should be inventoried.** § 160. When and by whom the inventory must be filed.— Whoever may be appointed executor or administrator must make for filing in the circuit court from which such appointment issues an inventory of the personal estate of his decedent withm sixty days after such appointment is made.*^ And any executor or ad- ministrator, on the failure of the others named in the same letters, may make and return such inventory and appraisement, and those so failing shall not aftenvard interfere with the admmistration of the estate of the deceased, without the consent of the acting executor or administrator or leave of the court.*^ An administrator who fails to file an inventory as required by these statutes should be at once removed.-^ But the failure to file an inventorv, while a breach of duty which will render an execu- tor or administrator liable to removal and liable on his bond, does not render the administration void."' Atl 295 57 \m. Rep. 552n ; Berry v. L. Mo. 587. The will of a partner Folkes 60 Miss 576; Louisiana Bank providing for contmumg his capital m Folkes, 60 M ss. 0/0, ^^^^ ^^^ authorize the execu- " i7h;w Pr (X Y) 385 For if tors t; invest further funds therein, Td st ry on he lil^s he will nor does it implicate the rest of his e. t ::::onali; liahle to all transa^ir. .. for s^J^nt husin.. ^h. escape liability to the heirs he must W^ X^ P. Ohio)^ ^ ^^^^^ ^^_ conduct the business as the will di- ^ -^^^^ ^. j^^^;,,„, 15 Barb, rects; or, if there are no directions, as S.) U^ , i^itts j his testate did and he is not bound to take security for sales on credit as an administrator is usually required to do. Cline's Appeal, 106 Pa. St. 617. If a partner's will provided for a con- tinuation of his interest in the firm, the residue of his estate is not thereby implicated in liability for future debts, nor is the settlement of his estate sus- pended. Peters v. Campbell, 3 West. ( N V )' 310 ; Wilson v. Rousseau, 4 How. '(U. S.) 646, 11 L. ed. 1141; Dudley v. Mayhew, 3 N. Y. 9. -Burns'R.S. 1908, §2777. «Burns'R.S. 1908, §2784. ^» State V. Scott, 12 Ind. 529; State V Bennett, 24 Ind. 383. "State V Smith, 52 Conn. 5b/; Cooper V. Horner, 62 Tex 356; Phe- lan V. Smith, 100 Cal. 158, 34 Pac. 667. 232 INDIANA PROBATE LAW. § 161 The Statute makes it the duty of an executor to file an inven- tory, and the testator cannot relieve him of this duty by providing otherwise in his will/" To omit assets from an inventory knowingly and purposely is a fraud for which an administrator or executor will be held liable ; but, as has been shown, an item honestly or mistakenly omitted is no fraud." Where there is a conflict between the court records and the inventory the records will control.''* § 161. Separate and additional inventories. — ^^'hen such estate is situated in places distant from each other, the executor or administrator may make returns, and file separate inventories and appraisements for each of said places, and shall have power to select different appraisers in each case, from the neighborhood in which such estate, or the greater part thereof, may be situate, to appraise the estate specified in any such inventory.^' Such executor or administrator shall make further inventories of the personal estate of such decedent, as the same may come to his knowledge, under the same regulations as provided in case of the first inventor}^^'' When it becomes necessary to file further inventories, a failure to do so is as much a breach of the bond of an executor or admin- istrator as would be his failure to file the original one.^'^ If new assets come into the possession of an executor after he has filed his inventory, this statute requires him to make a new one, and the same rules will apply to the new inventor}- as to the original one. § 162. What shall be omitted. — Where a man having a family shall die, leaving a widow or minor child, the following '* Potter V. McAlpine, 3 Dem. (N. "^Burns' R. S. 1908, § 2789. Y.) 108. =« Burns' R. S. 1908, § 2790. "'McNeel's Estate, 68 Pa. St. 412; "State v. Scott, 12 Ind. 529; Moore Speakman's Appeal. 71 Pa. St. 25. v. Holmes, 32 Conn. 553. "Ray V. Doughty, 4 Blackf. (Ind.) 115. § 1 62 DISPOSITION OF PERSONAL PROPERTY. 233 articles shall be omitted in making the inventory, and shall not be considered as assets, viz. : First. All the articles of apparel and ornament of the widow and of the children of the deceased. Second. The wearing apparel of the deceased, which shall be distributed at the discretion of the widow; or, if there be no widow, in the discretion of the executor or administrator, among the nearest relatives, unless otherwise legally directed to be dis- posed of by the deceased. Third. Bibles and school books used in the family of such deceased. Fourth. All the provisions on hand provided for consumption by the family. ^^ Besides the exceptions in favor of the widow and minor chil- dren of a decedent made by this statute, they are also permitted to occupy and use, rent free, for the space of one year from the death of the decedent, the dwelling-house ordinarily used by the family, the messuage appertaining thereto, and fields adjacent, if any, not exceeding forty acres.^^ And they will be entitled to receive, use and enjoy the fruits and products of the same which naturally ripen, mature and come off during the year while they have the right to occupy the premises.*'" This right is confined to the widow and minor children of the deceased, but if the children are taken away the widow may continue to occupy the premises alone ;*'^ but this right is confined exclusively to the dwelling- house, and does not include a store room connected with it in the same building. *'- The crops growing upon the lands to which the widow is enti- ** Burns' R. S. 1908, § 2779. quent, wife's rights are the same as •^ Burns' R. S. 1908, § 3030. those of the first. Willetts v. Schuy- •• Swain v. Bartlow, 62 Ind. 546. ler, 3 Ind. App. 118, 29 N. E. 273. Hoover v. Agnew, 91 Ind. 370. In this ^ Weaver v. Lowe, 29 Ind. 57; Jones last case the widow's right was held v. Jones, 81 Ind. 292. not to depend on the existence of mi- °- Williamson v. Ash, 7 Ind. 495; nor children. The second, or subse- Tucker v. Murphy, 71 Ind. 576. 234 INDIANA PROBATE LAW. § 1 62 tied by right of quarantine, at the death of her husband, should not be inventoried by his administrator.*^^ The title to the above enumerated property vests in the widow and children at once on the death of the husband."* The admin- istrator takes no title or right to any of the omitted property, and cannot sell or dispose of it even by order of the court. "^ But if he should sell them he will be liable to account to the widow and children for the proceeds;'"^ or the widow may waive her right of action against the administrator for conversion and pursue and obtain the proceeds.''' The jewelry of the deceased husband, such as his watch, watch chain and charm, ring, diamond shirt stud, seals, etc., are not wearing apparel of the deceased so as to pass under the above statute, and therefore must be inventoried by the executor or ad- ministrator.*'^ Under the right of quarantine the widow and children not only may have the land rent free, but are entitled to all crops ripening thereon within the year. But such crops as had matured and been harvested prior to the husband's death belong to his estate, and cannot be claimed under the right of quarantine.*^'* "^ Willetts V. Schuj-ler, 3 Ind. App. articles cannot be substituted for those 118, 29 N. E. 273; Swain v. Bartlow, mentioned. Bayless v. Bayless, 4 62 Ind. 546. Coldw. (Tenn.) 359; Johnson v. "Kellogg V. Graves, 5 Ind. 509; Henry, 12 Heisk. (Tenn.) 696. Hastings v. Myer, 21 Mo. 519. A "' Coffinberry v. Madden, 30 Ind. woman who has been divorced from App. 360, 66 N. E. 64, 96 Am. St. 349 ; her husband has no right under this Sawyer v. Sawyer, 28 Vt. 249. statute. Dobson v. Butler, 17 Mo. 87 ; «« Bush v. Bush, 41 Ind. App. 46, 83 Hettrick v. Hettrick, 55 Pa. St. 290. N. E. 386. The court in this case •^Carter v. Hinkle, 13 Ala. 529; says: "But while we recognize the Graves v. Graves, 10 B. Mon. (Ky.) Iieneficent purpose of the statute, and 31. the liberality with which it should be "" Willetts V. Schuyler, 3 Ind. App. construed, yet we cannot so extend 118, 29 N. E. 273; Cummings v. Cum- the statute as to hold that it gives to mings, 51 Mo. 261. the family of the deceased crops that *'' "Willetts V. Schuyler, 3 Ind. App. had ripened and matured and had 118, 29 N. E. 273. Where the widow been harvested though not removed and the children do not live together from the land prior to decendent's the court, if it sees fit, may divide the death. If wheat cut and shocked stock of provisions among them, should go to the widow under this Womack v. Boyd, 31 Miss. 443. Other section, we can see no reason why § 163 DISPOSITION OF PERSONAL PROPERTY. 235 § 163. Appraisers, their appointment and duties. — The ex- ecutor or administrator shall cause the personal estate of the decedent, embraced in said inventory, to be appraised by two reputable and disinterested householders of the neighborhood, who, before proceeding to the discharge of such duty, shall take and subscribe an oath that they will honestly appraise such estate at its fair cash value; which oath shall be returned with the in- ventory.'*' The appraisers shall, in the presence of each other and of such executor or administrator, appraise each article as specified in the inventory, at its true value, and set down opposite to each article, respectively, the value in dollars and cents, in figures."^ \\'hen by the terms of a will land is devised to an executor, or directed by such will to be sold for the payment of debts, etc., such land must also be appraised by the appraisers at its true value. ^" The oath required of the appraisers may be ad- ministered by the executor or administrator of the estate.'^ \\'here a decedent, prior to his death, had mortgaged or pledged personal property, his executor or administrator may redeem such property, and it will become assets in his hands for all it will bring over and above the sum paid in redemption, and this excess over the amount of the redemption money will be the appraised value of such property on the inventory. While an appraisement is prima facie evidence of the value of the estate appraised, it is not conclusive either upon the executor, administrator, or upon any person interested in the estate; and parol evidence will be admitted to establish the real value of the property so appraised.'* wheat cut and stacked should not, and estate, and not to his widow ; and the if wheat cut and stacked should be so court erred in ordering the adminis- considered, then hay in the barn or trator to pay the proceeds over to the corn in the crib would be in the same widow." categor3\ In the case before us the ™ Burns' R. S. 1908, § 2777. widow could have obtained a crop of " Burns' R. S. 1908, § 2778. wheat by sowing it in the fall and '- Burns' R. S. 1908, § 2780. harvesting it before her j^ear had ex- " Burns' R. S. 1908, § 2987. pired. The wheat having ripened, and "* Cameron v. Cameron, 15 Wis. 1, having been harvested before the 82 Am. Dec. 652; Williams v. Petti- death of decedent, it belonged to his crew, 62 ^lo. 460; Reed v. Gilbert, 32 236 INDIANA PROBATE LAW. § 1 64 It will be noticed that this statute requires the appraisers to make oath to appraise the property at its "fair cash value," and further that they shall appraise each article at its "true value." This would seem to imply that the legislature intended "true value" to be the "cash value" of the article, but this does not rid the question entirely of difficulty. It has been held that "true value" means actual cost,'^ but it would seem that actual cost or intrinsic value are not in a legal sense "true value." In a scientific sense value is interpreted as exchangeable value. In other words, property is worth what it will bring in something else of value ; this, if money, is cash value; so appraisers, therefore, need not be concerned about intrinsic value or cost price, but only the amount of money the property will bring if sold at public auction to the highest bidder. § 164. The widow's selection. — The widow of the dece- dent, whether he die testate or intestate, may, at any time before the sale, select and take articles therein named at the appraise- ment, not exceeding in the aggregate five hundred dollars. Each article taken by her shall be so noted on the inventory opposite the article taken, or a separate inventory- may be made of the articles so taken, and returned with the general inventory. She shall execute a receipt therefor to the executor or administrator, which shall be returned and filed with the inventory. If the widow fail or refuse to select and take all or any part of the articles in this section provided, she shall be entitled to the amount of the deficiency, in cash, out of the first moneys received by the executor or administrator in excess of the amount neces- sary to pay the expenses of administration and of the last sickness and funeral of the deceased: Provided, That if the estate be clearly solvent, she shall be entitled to such payment out of the first moneys received by such executor or administrator. If the personal estate of the decedent be insufficient to pay the amount Me. 519; Smith v. Smith, 76 Ind. 236. any inventory, the value of the prop- In this last case it was held that if a erty may be shown by parol. settlement of the estate is agreed upon " United States v. Tappan, 11 Wheat, by all the parties interested without (U. S.) 419, 6 L. ed. 509. § 164 DISPOSITION OF PERSONAL PROPERTY. 237 due the widow, in cash, as aforesaid, the deficit shall constitute a lien upon the real estate of the decedent liable to sale for the payment of debts ; which lien may be enforced, upon the petition of the executor or administrator, in like manner as lands of the decedent are sold for the payment of debts, and shall be superior to the lien of judgments upon said real estate rendered against the decedent." The right of selection conferred upon the widow by this statute continues up to the time of the sale of the personal property of the decedent ; and it is not in the power of the executor or admin- istrator to impair or abridge this right by demanding that she select the articles to be taken before the inventory is returned. Nor is her right to make such selection, after the inventory has been returned, affected by the fact that she may have made a partial selection before such return. Within the time fixed by the statute her right to election to take at the appraisement is absolute." And if the administrator or executor is threatening to sell property which she needs and cannot readily replace, the widow has the right to enjoin such sale. The property is hers and can- not be sold by the executor or administrator.^^ This statute is clear and comprehensive, and gives to the widow the sum specified therein out of property of which her husband died the owner, and which, if living, he might have exempted from a sale on execution. And such sum is secured to her even though an execution had been levied upon the husband's property before his death; the statute providing that "the death of a de- fendant after the execution is placed in the hands of the sheriff* to be executed, shall not affect his proceedings thereon, except that the amount of property allowed absolutely to the widow of the . ""Burns' R. S. 1908, § 2786. "'Denny v. Denny, 113 Ind. 22, 14 N. "Denny v. Denny, 113 Ind. 22, 14 N. E. 593. The appraisement is not con- E. 593; Wilson v. Moore, 86 Ind. 244. elusive as to the value of the goods The failure of an administrator to file claimed. The value of the property his inventory does not affect the right may be otherwise proved. Pace v. of the widow. Kelly's Estate, 14 Pa. Oppenheim, 12 Ind. 533; Dean v. Co. Ct. 51. Richards, 16 Ind. 114. -3^ INDIANA PROBATE LAW. § 164 decedent shall be exempt from levy and sale under such exe- cution."'® Taking this section of the statute with the one above set out, and, as the court says, "it seems to us that it is impossible to avoid the conclusion that the legislature meant to secure to the widow five hundred dollars in all cases where the husband has not. in his lifetime, by a voluntar>' contract divested himself of ownership or so encumbered the title as to destroy the right of exemption."'*' Those cases which seem to hold to a contrary doctrine'^ are all, with the exception of one, based upon other statutes which are very different in their terms from the statute under considera- tion. This one case, Mead v. McFadden, 68 Ind. 340, is based upon this statute, but when its reading was different from what it is now. Under the statute as it then read, such part of the widow's allowance as could not be paid out of personal property of the estate was made, as now, a lien upon the decedent's real estate, but "to be paid in the same order in which judgments and mortgages" were paid. And in that case her lien was held to be junior to the lien of judgments taken against her husband in his lifetime. But the statute now expressly provides that the lien of the widow shall be superior to that of judgments rendered against the decedent. § 165. Same — Statute construed. — The right given by this statute to the surviving wife is as full as the right of any dis- tributee to the assets remaining for distribution after an estate has been settled. It gives her a credit for the necessaries of life at once upon the husband's death, and the means of decent burial should she die before the amount comes to her hands. The statute requires a liberal, instead of a narrow, interpretation, in order to accomplish the purposes of the legislature in enacting it. The amount allowed the widow is hers absolutely, and upon her death before claiming it, it belongs to her estate and goes to her '' Burns' R. S. 1908, § 833. Mead v. McFadden, 68 Ind. 340; '"Dixon V. Aldrich, 127 Ind. 296, 26 Quakenbush v. Taylor, 86 Ind. 270; >^'- E. 843. Fleming v. Henderson, 123 Ind. 234, ^'Recker v. Kilgore, 62 Ind. 10; 24 N. E. 236. 165 DISPOSITIOX OF PERSONAL PROPERTY. 239 personal representatives/'^ The right and title of the widow to this allowance, either in property or money at her election, vests in her and becomes absolute immediately on the death of the hus- band. ^^ In order, however, to perfect and complete her right of possession to such allowance there must be an appraisement in the court of administration and a selection of the property by her, under such appraisement.®* The right of the widow to this allowance must be determined by the law in force at the date of the death of her husband. The legislation of the state on this subject has been subject to some changes, but there has been a constant tendency to make a better provision for the widow. The amount allowed to her has been increased from one hundred dollars to five hundred dollars; and from being confined in her selection to property only, she may now select either property or money, or both, as she may choose; instead of the hen of her claim being confined to the personal property of the estate alone, the allowance is made a lien against the decedent's real estate, and as such lien, instead of being classed with judgments, mort- gages and other specific liens against real estate, it is made a lien superior to judgments, and is preferred to all classes of debts save expenses of administration, funeral expenses, and expenses of the last illness.®^ The amount allowed the widow by this statute is not in the nature of an interest in the estate, but is a preferred claim which is payable out of the personal estate if it is sufficient for that purpose, and if it is not, then lands of the decedent must be sold to pay it.*® *' Bratney v. Curry, 33 Ind. 399; which gives the widow the right to Mills V, Marshall, 8 Ind. 54. Such five hundred dollars is clear and corn- claim may be released by the widow, prehensive, and it expresses the inten- but no act of the husband can deprive tion of the legislature to give her that her of it unless she consents. Clay- sum out of property of which her hus- pool v. Jaqua, 135 Ind. 499, 35 N. E. band died the owner, and which he 285. might, if living, have exempted from " Kellogg v. Graves, 5 Ind. 509. sale on execution." ^ Harrell v. Hammond, 25 Ind. 104. '' Claypool v. Jaqua, 135 Ind. 499, 35 " Leib V. Wilson, 51 Ind. 550; Dixon N. E. 285. Money which is claimed as V. Aldrich, 127 Ind. 296, 26 N. E. 843. firm property and not a part of the In this case it is said : "The statute deceased husband's estate, cannot be 240 INDIANA PROBATE LAW. § 1 66 The amount allowed the widow by this statute, when taken by her, either in property or money, must be considered as so much deducted from the assets of the estate in the hands of the execu- tor or administrator, without reference to the debts of the estate, and it constitutes no part of the surplus remaining after the pay- ment of debts, for distribution. She is entitled to her full dis- tributive share out of such surplus under the statute of distribu- tion, notwithstanding her selection under the above statute.®^ § 166. Same — Effect of a will. — In quite a number of cases it has been decided that the widow of a testator is entitled to the allowance made by the statute, out of his estate independent of debts, dower, or any testamentary provision in her behalf in the will of such testator.^* But this doctrine has been criticised and limited in the case of Langley v. Mayhew, 107 Ind. 198, 6 N. E. 317, 8 N. E. 157, where it is expressly decided that the widow of a testator may, by her election to take under an inconsistent pro- vision of his will, so release and relinquish her right to the provi- sion made for her by this statute as to bar her from afterward claiming it. And it has also been decided that, where, under a will, the testator's widow had received more than the amount pro- vided for in this statute, and, afterwards, in a suit for that pur- pose instituted by her the will was set aside, she could not, while retaining the property she had received under the will, claim the allowance the statute gave to her. In Hurley v. Mclver, 119 Ind. 53, 21 N. E. 325, it is said: ''While a testator may not have the power to dispose of property which the law casts upon his widow, nor to deprive her of the five hundred dollars to which she is en- titled by law, yet if it plainly appears that it was his purpose to do set off to the widow. Burroughs v. ^ Cheek v. Wilson, 7 Ind. 354; Lor- Knuton, (R. I.) 13 Atl. 108. ing v. Craft, 16 Ind. 110; Dunham v. " Hays V. Buffington, 2 Ind. 369. It Tappan, 31 Ind. 173; Schneider v. is not necessary for the widow to give Piessner, 54 Ind. 524 ; Nelson v. Wil- written notice of her claim. Bacon v. son, 61 Ind. 255 ; Whiteman v. Swem, Perkins, 100 Mich. 183, 58 N. W. 835; 71 Ind. 530; Smith v. Smith, 76 Ind. Rush V. Kelly, 34 Ind. App. 449, 1Z N. 236. E. 130; Graham v. Russell, 152 Ind. 186, 52 N. E. 806. § 1 66 DISPOSITION OF PERSONAL PROPERTY. 24I SO and the widow has accepted a testamentaty provision made for her, such acceptance is a confirmation of the testamentary dispo- sition, and waives her right under the law."'' In Shafer v. Shafer, 129 Ind. 394, 28 N. E. 867, the court says : "Whatever may have been the rule of construction m this state prior to the decision in the case of Langley v. Mayhew, 107 Ind. 198 6 N E 317, 8 N. E. 157, it is now settled that where a hus- band has made specific provision for his widow, and has also dis- posed of all his other property in such a way as to make it appar- ent that the assertion by the widow of the right to take both under the law and under the will would defeat the manitest pur- pose of the testator, she will be confined to the provisions^made by the will, if she elects to take the provision made for her _ The widow's right to this allowance may be waived by her m an ante-nuptial agreement between herself and her husband. And such agreement, where it relates to real as we 1 as personal property, is within the statute of frauds, and must be in writ- 92 '""^In Booi-d V. Boord, 163 Ind. 307. on page 309, 7i N. E. 891, the court savs : "It may be said to be the settled rule m this state that where a husband has made a specific testamentary prov sion for his widow, and disposed of the remainder of his P^P^^'^y ^^ others, the widow will not be pem.itted to take both under the will » Renner v. Ross, 111 Ind. 269, 12 N. " Shaffer v. Richardson, 27 DkL 122 ; T7 ^08 Shinmanv Kevs 127 Ind. 353. Sherwood v. Thomasson, 124 Ind. 541, E. 508, bhipman \. ive\b, 1^/ Houshton v. Houghton, 26 N. E. 896; Whisnand v. Fee 21 34 ^ •7- ^f '/\°^= j^^, 69; Claypool Ind. App. 270, 52 N. E. 229; Boord v. 14 Ind. ^0^ 7^^n.^^3^5^^ ^ ^^ Boord, 163 Ind. 307, 71 N. E. 891. v. J-Jl^a 135 Ind^4^, 35 . ^^ ^ Tt i^ true that a testator cannot '- Rainbolt v. East, 50 inu. o , It is true tndi a i concealing an ante- n.ay waive the provision made by law, husband ^e wid-v ob a and take in lieu of it a provision jf ""^^^^ °^ j^^^l^ , "he ^dminis^^^ n.ade by the will of her husband is f^-^/^^t^^^j'^^J.^Hng,' Mcintosh, too well settled to require the citation to^r^n damages, ^o^^hn. . . .. 89 Ind. 593. of authority. 1(5_Pro. L.\w. 242 INDIANA PROBATE LAW. § 1 67 and under the law when such a taking will have the effect of de- feating the manifest purpose of the testator.""^ § 167. Same — Widow may maintain action for. — Where the widow has demanded of the executor or administrator her allowance under this statute and has been refused, such executor or administrator becomes liable to her on his bond for the amount of her allowance.^* And it is a sufficient demand for such widow to inform the executor or administrator that she has decided to make her selection under the statute."'^ This is a duty imposed upon an executor or administrator, and he is required to perform it before he can make a final settlement of the estate. And in case of his neglect or refusal to discharge this duty, he may be compelled to do so by an order of court, made uix)n the applica- tion of the widow. ^° An action may be maintained by the widow against the execu- tor or administrator to have the allowance made her by this stat- ute set off to her, and in such action she is a competent witness. ^^ The judgment in such action is in the form of an order by the court requiring the executor or administrator to set apart to her the specific property claimed, or to pay to her the amount in money.®^ The statute makes this claim of the widow a preferred one, and if an executor or administrator should pay out the assets of the estate upon the general debts to the neglect of the claim of the widow he would perhaps be held liable. °^ And where the administrator or executor has refused to pay the allowance provided for her by this statute, and she is com- '^ Pierce v. Pierce, 21 Ind. App. 184, that she will make her selection. Ham- 51 N. E. 954; Blake v. Blake, 15 Ind. ilton v. Matlock, 22 Ind. 47. App. 492, 44 N. E. 488. *' She is entitled to an order of court *• Walker v. Prather, 3 Ind. 112. requiring the administrator to set off "^ Hamilton v. Matlock, 22 Ind. 47. to her the property selected. Brown- "' Browning v. McCracken, 97 Ind. ing v. McCracken, 97 Ind. 279; Zeigler 279. V. Mize, 132 Ind. 403, 31 N. E. 945. " Sherwood v. Thomasson, 124 Ind. ^ Cunningham v. Cunningham, 94 541, 24 N. E. 334. It is a sufficient de- Ind. 557 ; La Plante v. Convery, 98 nial if she inform the administrator Ind. 499. § l68 DISPOSITIOX OF PERSONAL PROPERTY. 243 pelled to sue for it, she is entitled to interest on the amount due her from the time of such refusal.^ A wife who is Hving in a state of adulter\% apart from her husband, at the time of his death, is not allowed the benefit of this statute ; she can take none of his property.^ In the absence of any averment and proof to the contrary, the presumption is in favor of chastity, and it is not necessary for the widow, in her petition to have property set off to her, to allege that she had not deserted her husband and was not living in adultery at the time of his death.^ There must, however, have been a valid marriage. If she was simply living with the decedent, although treated by him as his wife, she would not at his death be entitled to the allowance.* § 168. Return of the inventory. — Such inventory and ap- praisement, and the inventory of the articles taken by the widow, shall, when completed, be carefully added up, and the amounts set down in the footings ; and said inventories and appraisements shall be subscribed by the appraisers and such executor or admin- istrator, and returned by the latter to the clerk of the proper circuit court within thirty days thereafter. The executor or ad- ministrator shall thereupon take and subscribe an oath before said clerk, to be indorsed upon or attached to such inventories, that the same is a true and complete statement of all the personal estate of the decedent which has come to his knowledge, and of the property, and appraisement thereof, taken by the widow. ^ An inventory when so returned is only prima facie evidence of the amount of property belonging to the estate ; but in a contro- versy between the appraisers and the executor or administrator the burden of disproving its correctness is thrown upon the lat- ter.« Every executor or administrator shall make out, and retain in ' Brown v. Bernhamer, 159 Ind. 538, " Grimm's Estate, 131 Pa. St. 199, 18 65 N. E. 580. Atl. 1061, 17 Am. St. 796, 6 L. R. A. *Owen V. Owen, 57 Ind. 291. 717. » Sher^vood v. Thomasson, 124 Ind. ' Burns' R. S. 1908, § 2787. 541, 24 X. E. 334; Zeigler v. Mize, 132 « Schouler Extrs. & Admrs., § 233. Ind. 403, 31 X. E. 945. 244 INDIANA PROBATE LAW. § 1 69 his possession, a duplicate of each inventory and appraisement of the personal estate made oat by him and recorded as aforesaid. '^ § 169. Examination and approval. — The clerk of the cir- cuit court, in vacation,. or the judge thereof to whom such inven- tory and appraisement are returned, shall immediately examine the same, and indorse an approval thereon if found correct and in proper form, and the clerk shall file and record the same in the record kept for that purpose; if the same be found incorrect or informal, the defect shall be noted thereon, and the inventoiy and appraisement returned to the executor or administrator for correction; and the same, when corrected, shall be returned to the clerk, and filed and recorded as aforesaid.^ § 170. Sale of personal property — When made. — Such ex- ecutor or administrator, immediately after filing any such in- ventory and appraisement, shall proceed to sell, at public auction, the personal property of the deceased not taken l)y the widow." The statute, as a general rule, contemplates that the personal property of a decedent shall be sold at public sale; but the court may, in some cases, order a private sale. When sold at private sale, such property must bring the full appraised value. It is necessary, before offering personal property of a decedent for sale, either at public or private sale, that the executor or admin- istrator should have such property duly appraised, to properly convey the title to the same.^" The power to sell a decedent's personal property is one which is conferred upon an executor or administrator by statute ; and, when letters testamentary or of administration are properly issued, they authorize and make it the duty of the executor or administrator to sell the personal property of his decedent ; and such sale, if made in compliance with the statute regulating such matters, passes the title to the property to the purchaser, even though the sale was wholly un- necessary.^^ ' Burns' R. S. 1908, § 2791. Citizens St. R. Co. v. Robbins, 128 Ind. 'Burns' R. S. 1908, § 2788. 449, 26 N. E. 116, 25 Am. St. 445, 12 " Burns' R. S. 1908, § 2792. L. R. A. 498. '"Ramey v. McCain, 51 Ind. 496; " 'The common law right of the ad- §170 DISPOSITION OF PERSONAL PROPERTY. 245 Nothing but fraud or collusion between the executor or admin- istrator and the purchaser, in which both participated, would avoid a sale so made/" And whether the sale be public or private, a purchaser of any property sold must comply with his bid and the terms of the sale, or he becomes liable to the executor or ad- ministrator for the difference between his bid and what the prop- erty brought on a resale thereof, if it sold for an amount less than his bid." An executor or administrator has the right to employ an auctioneer to make such sale for him.^* Where full power is conferred by will upon an executor to sell and convey property of his testator without reporting the sales or conveyances to the proper court for confirmation, it will not restrict the power of the court to require a proper application of the proceeds of such sales. ^^ The executor or administrator, being a trustee of the estate of his decedent, cannot purchase property of the estate, either directly or indirectly, at his own sale or that of another. Such purchase, if made, will be set aside upon the application of the cestui que trust. ^*'' This statute contemplates a sale at public auction, after notice, and the return of the sale bill kept by the clerk of such sale is all the report of a public sale the law requires. Title to personal property sold at a public sale under this statute passes at once to the purchaser upon his compliance with the tenns of the sale. All personal property must be sold at public auction unless the jninistrator to sell and dispose of per- private sale of personal property of sonal property does not exist in this the decedent by an administrator is state. Sales of such property must be most useful where the property is of a made in the manner prescribed by our perishable nature, such as can best be statutes upon the subject. In the ab- disposed of in the public market, or sence of an order from the proper such as would probably be sacrificed at court, the sale must be public, and a public sale." Citizens St. R. Co. v. where a sale is made at private sale Robbins, 128 Ind. 449, 26 N. E. 116, 25 under the order of the court, it must Am. St. 445, 12 L. R. A. 498. be made in substantial compliance " Meek v. Spencer, 8 Ind. 118. with the order." Citizens St. R. Co. v. " Lewis v. Reed, 11 Ind. 239. Robbins, 128 Ind. 449, 26 N. E. 116, 25 " Ex parte Hayes, 88 Ind. 1. Am. St. 445, 12 L. R. A. 498. "Martin v. Wyncoop, 12 Ind. 260; "Weyer v. Second Nat. Bank, 57 Brackenridge v. Holland, 2 Blackf. Ind. 198. "The statute authorizing the (Ind.) Zll , 20 Am. Dec. 123. 246 INDIANA PROBATE LAW. § I7I executor or administrator obtain an order of court authorizing a private sale.^^ § 171. Postponement of the sale. — Whenever it shall be advantageous to the estate, the executor or administrator may postpone the sale of all or any portion of the personal property until the first term of the circuit court succeeding the filing of the inventory. For the same cause the court may, at any time after the filing of the inventory, on petition of the executor or administrator, and satisfactory proof, postpone the sale of all or any portion of the personal property from time to time for any period deemed necessary. If the sale of said property be required for the payment of debts, it shall not be postponed longer than six months after filing the inventory. No notice of the filing of such petition shall be required, nor shall the creditors or the heirs be necessary parties, but any one of either or any legatee may appear and contest the same. The court may also require addi- tional security from the executor or administrator when neces- sary for the safety of the estate. When all the liabilities of the estate are paid and satisfied, it may, on petition of all the heirs and other persons entitled to distribution, be finally settled with- out the sale of such property by the executor or administrator.^^ The executor or administrator may defer the sale of the annual crops raised by labor, and which are not severed from the land at the time of such sale, beyond the time herein prescribed for the sale of the personal estate; and the same may be sold before or after they are severed from the land, in the mode prescribed for the sale of other personal property.^® § 172. When notice of sale required. — In all sales of per- sonal property by an executor or administrator when made at public auction under the statute, notice of the time, place, and terms of such sale must be given, except only in cases where the appraised value of the personal estate does not exceed one thou- sand dollars. The statute is as follows : "Three weeks' previous " Weyer v. Second Nat. Bank, 57 '' Burns' R. S. 1908, § 2795. Ind. 198. '" Burns' R. S. 1908, § 2797. § 173 DISPOSITION OF PERSONAL PROPERTY. 247 notice of the time and place of such sale shall be given by such executor or administrator in some public newspaper printed and published in the county in which such sale is to be made, if any newspaper be printed therein, and by posting up written or printed notices thereof at three public places in the township in which such property is to be sold : Provided, That if the amount of said personal property to be sold does not exceed one thou- sand dollars in value as shown by the appraisement, the same may, in the discretion of the court, be sold upon such notice of sale as the court may prescribe.""" Personal property sold at private sale upon the order of the probate court may be sold without notice unless the court's order requires notice to be given, in which case such order should specify when and how such notice should be given. § 173. Terms of public sale. — A credit of not less than three nor more than twelve months shall be given at all such sales of personal property by the executor or administrator, where the amount purchased exceeds five dollars ; and notes waiving valua- tion and appraisement laws, and bearing six per cent, interest after maturity, with sufficient sureties, shall be taken in all sales of personal estate of the deceased.^^ As a general rule an executor or administrator, upon a sale of his decedent's property, is not authorized to receive anything but money in payment therefor.-^ This statute, however, permits a reasonable credit in the payment, upon the purchaser giving satisfactory security. An executor or administrator has no power to apply the proceeds of such sale to the discharge of his own in- dividual liabilities; and if he attempt to do so and afterwards fails to account for and pay over in money such proceeds, an action will lie for their recovery against such executor or admin- ** Burns' R. S. 1908, § 2793. will render the administrator person- ^ Burns' R. S. 1908, § 2794. ally liable. Parham v. Stith, 56 Miss. ^ Chandler v. Schoonover, 14 Ind. 465, or if the security accepted is 324; Bevis v. Heflin, 63 Ind. 129. worthless, Shepard v. Shepard, 19 Fla. Where security is required the omis- 300, Bowen v. Shay, 105 111. 132, he sion to take it does not vitiate the sale, may accept cash. Gwynn v. Dorsey, 4 Lay V. Lawson, 23 Ala. 377. But it Gill & J. (Md.) 453. 248 INDIANA PROBATE LAW. § 1 73 istrator on his bond, or the sale may be set aside; and if the pur- chaser had knowledge of such misapplication of the proceeds of his purchase by the executor or administrator at the time, the purchase money may be recovered from such purchaser.-^ An administrator has no right to give away assets of the estate, even where he considers them worthless."* An administrator or executor will not be allowed to purchase at his own sale. He cannot act as both vendor and vendee. Such purchase may be questioned by the heirs or others interested in the estate."^ An administrator may receive, in satisfaction of a note pay- able to him as such administrator, an account due the maker of the note from a third party. But to make this a good case of novation every element of fraud must be absent, and the claim must be duly assigned to the administrator with the assent of all the parties to the transaction.-" If the purchaser is also a creditor of the estate he will not be permitted to deduct from the purchase price of property bought the amount owing to him from the estate." When the terms of sale require security to be given, and none is accepted by the administrator, he will be held personally liable in case of loss to the estate.^^ But if he accepts security which he knows to be insufficient, he will still be held liable, but is perhaps entitled to have turned "^ Chandler v. Schoonover, 14 Ind. "■ Chandler v. Schoonover, 14 Ind. 324; Bevis v. Heflin, 63 Ind. 129; Nu- 324; Pendarvis v. Wall, 14 La. Ann. gent V. Laduke, 87 Ind. 482. 449. ^Nugent V. Laduke, 87 Ind. 482; "" Parham v. Stith, 56 Miss. 465; Radovich, Estate of, 74 Cal. 536, 16 Citizens St. R. Co. v. Robbins, 128 Pac. 321, 5 Am. St. 466. Ind. 449, 26 N. E. 116, 25 Am. St. ,445, -'Martin v. Wyncoop, 12 Ind. 260; 12 L. R. A. 498. If the security is Potter V. Smith, 36 Ind. 231. Where good when taken, the administrator he makes a purchase he is liable for will not be personally liable for the the full appraised value. Griswold v. after insolvency of the surety. The Chandler, 5 N. H. 492. The heirs are loss is on the estate. Gordon v. not barred by acquiescence. Boerum Gibbs, 3 Sm. & M. (Miss.) 473; V. Schenck, 41 N. Y. 182. Davis v. Marcum, 4 Jones Eq. (N. =' Hancock v. Morgan, 34 Ind. 524; Car.) 189. Morris v. Whitmore, 27 Ind. 418. §1/4 DISPOSITION OF PERSONAL PROPERTY. 249 over to him the notes which are deemed insufficient."^ If the order is to sell at private sale, on short time, with security, and the sale is made on long time with no security, such sale is void.^° If the security taken was good and in accordance with the statute or order of the court at the time it was taken, a subse- quent failure or insolvency of the sureties will not render the administrator liable, but the loss will fall on the estate. But if he should neglect to take proper and sufficient security the rule is different, and he will be liable upon his bond for the purchase money. The omission to take security, however, does not vitiate the sale.^^ § 174. Sale bills and sale clerk. — An executor or adminis- trator, making a public sale of personal property, shall select a clerk to keep an account thereof, who shall not be related to him or interested in the estate ; he shall be furnished, by the executor or administrator, with a copy of the inventor}^ of the property to be sold, and shall keep a minute of each article sold, the num- ber thereof on the inventory, to whom and for how much sold, the amount of cash paid by each purchaser, and names of sureties taken on notes; he shall, on completion of the sale, make out, on printed blanks prepared for that purpose, a sale bill thereof, which shall specify the time, place, and terms of sale, the differ- ent articles sold, the prices thereof, amount of cash paid, and names of purchasers and sureties; the articles shall be arranged in the sale bill in numerical order, in which they appear in the inventory, and opposite each article on the margin shall be noted the number it bears on the inventory; if any of the articles named in the inventory, and subject to sale, remain unsold, the clerk of the sale shall subjoin to the sale bill a list thereof in the order in which they appear on the inventory, noting in the proper columns opposite each article the number and appraisement thereof, as shown on the inventory; the sale bill and subjoined list shall be "-" Lindley v. State, 116 Ind. 235, 18 ^ Citizens' St. R. Co. v. Robbins, 128 N. E. 45; Bowen v. Shay, 105 111. 132; Ind. 449, 26 N. E. 116, 25 Am. St. 445, Hasbrouck v. Hasbrouck, 27 N. Y. 12 L. R. A. 498. 182. '' Lay v. Lawson, 23 Ala. 377. .250 INDIANA PROBATE LAW. § 1 75 correctly added up and the footing noted on each; the clerk of the sale shall thereupon take and subscribe an oath, to be indorsed upon or attached to the sale bill and subjoined list, if any, that they contain a true and complete account of the sale of the per- sonal property of the deceased, by the executor or administrator, and of the articles remaining unsold, as shown by the inventory; the sale bill and subjoined list shall be returned to the clerk of the court in which the estate is pending, whereupon like proceedings shall be had as upon the return of an inventory and appraise- ment.^^ The sale bill is the best evidence of the sale whenever it be- comes necessary for an executor or administrator to prove a sale of his decedent's property made by him, and such sale bill is admissible as primary evidence. ^^ § 175. Personal property at private sale. — For the pur- poses of the administration the law makes it the duty of an executor or administrator to convert the personal property of his decedent into money as promptly as possible. Immediately after filing his inventory, if a sale is not, for some good cause, post- poned, he must sell at public outcr}^ all the personal estate of his decedent. This is the general rule, and except upon an order of court is the only method of making such sale. We have a statute, however, which provides that "Whenever the circuit court, or the judge thereof in vacation, shall be satisfied that it would be for the advantage of the estate of any decedent to sell any part of the personal property thereof at private sale, such court, or the judge thereof in vacation, may authorize the administrator or executor of such estate to thus sell the same ; but such property shall in no case be sold for less than its appraised value, nor shall such administrator or executor become the pur- chaser thereof; and a return of such sale shall be made within the time prescribed by the court, or the judge thereof in vacation, jiot to extend beyond three months; and cash or notes shall be taken for the purchase money as in case of public sale of per- gonal property of the deceased: Provided, however, That if the ^= Burns' R. S. 1908, § 2807. ^^ Meek v. Spencer, 8 Ind. 118. § 1/6 DISPOSITION OF PERSONAL PROPERTY. 25 1 court, or the judge in vacation, shall find, upon inquiry, that in any particular case it is to the interest of the estate to make such sale upon credit of more than twelve months, the court, or the judge thereof in vacation, shall so direct and order and fix such terms of credit as the court, or the judge thereof in vacation, shall deem fit and proper."^* This section of the statute is mandatory in its provisions, and an executor or administrator cannot sell the personal property of his decedent, or any part thereof, at private sale without having been authorized so to do by an order of some court having jurisdiction of the administration of his decedent's estate; and such order of court can only be obtained upon a proper case being made by the verified petition of the executor or adminis- trator of the estate and such other proof as may be required, showing that it would be of advantage to the estate that the per- sonal property mentioned in the petition should be sold at private sale.^^ And after such order of sale is obtained, the executor or administrator must have the property so ordered sold duly ap- praised, and if, after such sale is made, it did not appear that the property had been so appraised, the executor or administrator cannot maintain an action for the price of such property.^'^ § 176. Such sale must comply with the order. — If there is not a substantial compliance with the order of the court author- izing a sale of property at private sale, such sale will be held void." =* Burns' R. S. 1908, § 2806. "" Citizens' St. R. Co. v. Robbins, 128 'nVeyer v. Second Nat. Bank, 57 Ind. 449, 26 N. E. 116, 25 Am. St. 445, Ind. 198. 12 L. R. A. 498. Where an order to ^"Ramey v. McCain, 51 Ind. 496. In sell stock at private sale required the cases of private sales, where the order administratrix to make the sale on of the court does not require a con- good security, and the sale was made firmation, if the sale is made in sub- upon the individual note of the pur- stantial compliance with the order of chaser and without any security and the court, the title passes to the pur- on a credit of ten years, the statute chaser upon his compliance with the authorizing a credit of only twelve terms of the sale. Citizens' St. R. Co. months, the sale was void and vested v. Robbins. 128 Ind. 449, .26 N. E. no title. 116, 25 Am. St. 445, 12 L. R. A, 498. 252 INDIANA PROBATE LAW. § 1 76 The estates of the dead are a trust to the courts, and every legal safeguard to their proper administration ought to be faith- fully sustained. Where one assumes to dispose of the property of another, whether that other is living or dead, the acting party should always be required to produce and prove his authority; and when a person with a knowledge of the law, which all are presumed to have, purchases personal property belonging to a decedent's estate, from one claiming to be the executor or admin- istrator of the estate at private sale, he is bound to know that such sale has been authorized by an order of the proper court, and the property duly appraised prior to such sale, or he buys at his peril.^® Personal property once sold by an executor or administrator at public sale, upon the failure of the purchaser to comply with his bid, may be ordered sold at private sale, and at such sale if the property sell for a less sum than at the former sale, the original purchaser is liable to the executor or administrator for the differ- ence between the amount of his bid and the sum which the prop- erty brought at private sale.^** Unless so required by the court's order, it is not necessary to the vesting of the title that such sale should be reported and con- firmed.^** But the rule is otherwise if the order of court requires such sale to be reported to court.*^ However, if a sale is made, not in compliance with the order of the court, but is reported to and confirmed by the court, this will cure any error or defect.*^ In some of the states a distinction is made between the right to sell ''Weyer v. Second Nat. Bank, 57 tificate to the purchaser, without in- Ind. 198. quiring into the validity of the sale, it '' Meek v. Spencer, 8 Ind. 118. is liable to the estate for any loss oc- *° Citizens' St. R. Co. v. Robbins, 128 casioned thereby. It is bound to know Ind. 449, 26 N. E. 116, 25 Am. St. 445, that the sale has been made in compli- 12 L. R. A. 498. ance with the terms of the order. Nu- '^ Williams v. Perrin, 73 Ind. 57. In gent v. Laduke, 87 Ind. 482 ; Citizens' such case, if the corporation, with no- St. R. Co. v. Robbins, 128 Ind. 449, 26 tice that the stock belonged to the es- N. E. 116, 25 Am. St. 445, 12 L. R. A. tate of the decedent, and with notice 498. of the order of sale, cancels the cer- *= Jacobs' Appeal, 23 Pa. St. 477. tificates of stock, and issues a new cer- 8 177 DISPOSITION OF PERSONAL PROPERTY. 253 the tangible personal property o£ a decedent and that species known as choses in action, but in this state notes, book accounts, contracts, leases, bank and other corporation stock may be sold as any other personal property of the decedent is sold, either at public auction or at private sale/^ § 177. Report of private sale. — Where, by order of the court, a sale of personal property of a decedent's estate is to be reported to such court for confirmation, such sale must be re- ported and confirmed before the title to the property will pass to the purchaser.'** But where the order of the court does not require such sale to be reported and confiimed, if the sale is made in substantial com- pliance with the court's order, the title to the property will pass to the purchaser upon his compliance with the terms of the sale whether such sale is reported and confirmed or not."*^ However, if there should be any material deviation from the order of sale made by the court, no title will pass until such sale is reported and confirmed by the court.*'' Where an executor or administrator, in making a sale of his decedent's personal property at private sale, fails, in any material respect, to comply with the terms and conditions of such sale as imposed in the order of court authorizing it, the sale will be void and no title will vest in the purchaser. It is the purchaser's duty to know that the sale has been made in substantial compliance with the court's order.*' ^^ Thomas v. Reister, 3 Ind. 369; by the court." Citizens' St. R. Co. v. Ramey v. McCain, 51 Ind. 496; Ham- Robbins. 128 Ind. 449, 26 N. E. 116, rick V. Craven, 39 Ind. 241 ; Weyer v. 25 Am. St. 445, 12 L. R. A. 498. Second Nat. Bank, 57 Ind. 198 ; Rey- " Citizens' St. R. Co. v. Robbins, 128 nolds V. Linard, 95 Ind. 48; Citizens' Ind. 449, 26 N. E. 116, 25 Am. St. 445; St. R. Co. V. Robbins, 128 Ind. 449, 26 Hobson v. Ewan, 62 111. 146; Moffitt N. E. 116, 25 Am. St. 445, 12 L. R. A. v. Moffitt, 69 111. 641. 498. *' Citizens' St. R. Co. v. Robbins, 128 "Williams v. Perrin, 73 Ind. 57. "It Ind. 449, 26 N. E. 116, 25 Am. St. 445, is also probably true that where there 12 L. R. A. 498. is any material deviation from the or- *' Citizens' St. R. Co. v. Robbins, 128 der to sell, no title would pass until Ind. 449, 26 N. E. 116, 25 Am. St. 445, such sale was reported and confirmed 12 L. R. A. 498. 254 INDIANA PROBATE LAW. § i/S The purchaser at a sale made by an executor or administrator acquires only such title to the property purchased as the decedent had when living. There is no implied warranty of title/^ But if the executor or administrator should expressly warrant the title to such property, although he cannot bind the estate by so doing, he will render himself personally liable for such war- ranty/"* An estate cannot be held liable for the torts of an ad- ministrator or executor ; neither is it liable for his representations, warranties, or statements in respect to the title, condition, or quality of property sold by him.^" The application by an administrator of money belonging to the estate, in payment of his individual note, does not operate as a payment of the note. The money belongs to the estate, and such payment does not transfer the title to it, nor does it extinguish the note.^^ 178. When sale may be vacated. — The provision in secti ion 2875, Burns' R. S. 1908, that a sale of a decedent's real estate by *^ Weyer v. Second Nat. Bank, 57 Ind. 198; Bingham v. Maxcy, 15 111. 295; Cogan v. Frisby, 36 Miss. 178. He takes the title at his own risk and is not released from paying the pur- chase money by reason of a defect in the title. Cogan v. Frisby, 36 IMiss. 178. But if there is an entire failure of title, in the purchaser, the rule is somewhat different. Mockbee v. Gard- ner, 2 H. & G. (Md.) 176. " Sumner v. Williams, 8 Mass. 162, 5 Am. Dec. 83; Huffman v. Hendry, 9 Ind. App. 324, 36 N. E. 727, 53 Am. St. 351; Moody v. Shaw, 85 Ind. 88; Buckels V. Cunningham, 6 Sm. & M. (Miss.) 358; Lynch v. Baxter, 4 Tex. 431, 51 Am. Dec. 735. In Huffman v. Hendry, 9 Ind. App. 324, 36 N. E. 727, 53 Am. St. 351, it is said: "The es- tate is not liable for the torts of the administratrix. Neither is the estate liable for her representations, warran- ties, or statements in respect to the condition or quality of said cows. She may be liable personally for any dam- ages appellee may have sustained in reliance on her representations, war- ranties, or statements, but there can be no recovery against the estate on account thereof." '"Rose V. Cash, 58 Ind. 278; Holder- baugh V. Turpin, 75 Ind. 84, 39 Am. Rep. 124; Huffman v. Hendry, 9 Ind. App. 324, 36 N. E. 727, 53 Am. St. 351. In Riley v. Kepler, 94 Ind. 308, it is said : "If he made false representa- tions in the sale, that was his individ- ual tort, for which he alone could be held in|lividually liable." "' Fleece v. O'Rear, 83 Ind. 200. He cannot mortgage property of the estate to pay his own debt. Clark v. Coe, 52 Hun (N. Y.) 379, 5 N. Y. S. 243- Williamson v. Branch Bank, 7 Ala, 906, 42 Am. Dec. 617; Nugent v. La- duke, 87 Ind. 482. Nor give it away, although he may consider it worthless. Radovich, Estate of, 74 Cal. 536, 16 Pac. 321, 5 Am. St. 466. 179 DISPOSITION OF PERSONAL PROPERTY. ^DD an executor or administrator may be set aside by the court, and a resale of the land ordered whenever, before the report and con- firmation of such sale, it is shown to the court that a sum exceed- ing the sum bid by at least ten per cent., exclusive of costs of such sale, can be obtained therefor, is held to apply by implica- tion to sales of decedent's personal property by his executor or administrator ; and the court says : "There can be no doubt that, under its general jurisdiction over the settlement of the estates of decedents, the court has the power to, and in the exercise of a sound discretion may, refuse to confirm a private sale of per- sonalty, if it appear that a substantial advance can be had upon the price reported. "^^ The sale may be set aside where there has been fraud and col- lusion in keeping down or preventing bids or competition at the sale." If a sale is vacated the purchase money, if paid, should be returned.^* § 179. Sale of corporation stock. — Whenever any portion of the estate of any person dying intestate shall consist of stock- in a corporation or corporations, and when any person shall die testate owning such stock but making no disposition thereof in his will, the same shall not be sold except under the direction of the proper court; and, in the distribution of the estate among his heirs or legatees, such stock shall be distributed and transferred to them under the direction of the court. ^^ The statute of this state relating to the negotiation of promis- sory notes, etc., by indorsement, broad and comprehensive as are its terms, has no application whatever to certificates of corpora- tion stock, nor have we any statutory provision which makes such certificates negotiable by assignment or indorsement thereon, so as to vest any title to the shares of stock therein mentioned in the assignee or indorsee of such certificate. Such shares of stock are transferable only on the books of the corporation. ^"^ "= Williams v. Perrin, 73 Ind. 57. == Burns' R. S. 1908, § 2796. '" Jones V. French, 92 Ind. 138. =" Weyer v. Second Nat. Bank, 57 " Shepherd v. Fisher, 17 Ind. 229. Ind. 198; Citizens' St. R. Co. v. Rob- 256 INDIANA PROBATE LAW. § 180 Where a person procures another to become a surety for him by promising to transfer to such surety certain shares of bank stock as collateral security, and dies before such transfer is made, the surety will be entitled to have the stock applied to the pay- ment of the debt for which he is surety, and until this particular debt is paid such stock does not become general assets of the estate, even though the estate prove insolvent.^' So long as corporation stock remains unsold in the hands of an executor or administrator, he has the right and authority to vote it at corporation meetings, and that, too, whether such stock is held in his own right or as trustee, or whether transfer of it has been made on the corporation's books or not.°* § 180. Sale of written contracts. — Written contracts, ex- cept for the purchase of lands in tlie lifetime of the deceased, executed or transferred to him, obligating the person executing to the performance of anything other than the payment of money, may be sold as personal estate of the deceased. ^'^ When any such contract is sold, the executor or administrator shall assign and deliver the same to the purchaser thereof without recourse.^" Such assignment and delivery shall invest all the rights to enforce or dispose of such contract or agreement in such purchaser which would have vested in him if the deceased had made such assignment.®^ A lease is such contract as may be sold and transferred by as- signment; but such assignment, when made by the executor or administrator of a deceased tenant, will not release the estate from the payment of the rent accruing thereon subsequent to the death of the tenant. *'- The title to promissory notes and bills of exchange, due and bins, 128 Ind. 449, 26 X. E. 116, 25 =' AlcCoy v. Wilson, 58 Ind. 447. Am. St. 445, 12 L. R. A. 498. A pur- ^^ .Market St. R. Co. v. Hellman, 109 chaser of such new certificate, in good Cal. 571, 42 Pac. 225. faith, and without notice of any ille- =' Burns' R. S. 1908, § 2798. gality in the surrender and cancella- "" Burns' R. S. 1908, § 2799. tion of the original stock, is not lia- "^ Burns' R. S. 1908, § 2800. ble to the estate, its remedy being " Carley v. Lewis, 24 Ind. 23. against the corporation. § l8l DISPOSITION OF PERSONAL PROPERTY. 257 payable to a decedent, may be assigned by his executor or admin- istrator, so as to vest the title thereto in the assignee, by the in- dorsement or assignment of such executor or administrator,®^ But such transfer or sale when made by an executor or admin- istrator without consideration, or for his own individual benefit, the assignee having notice, conveys no title, but is a devastavit of the estate, which renders not only the executor or administrator, and the assignee, but any one, who, with notice, participated in the devastavit, liable for the full amount of the note, etc., trans- ferred, to any creditor or other person interested in the estate who is injured thereby."* But these sections of the statute under consideration provide only for the sale and assignment of such contracts as specify some other consideration besides the pay- ment of money. This would not include promissory notes and bills of exchange. The right of an executor or administrator to sell, assign and transfer such instruments is a common-law right, and needs no statutory enactment for its exercise. § 181, Sale of contracts for land. — If any such contract was for the purchase of land, and there are payments due or to become due thereon, and the court is satisfied, upon such executor or administrator filing his petition therefor, verified by affidavit, that it would be more to the advantage of the persons interested in such estate that the interests of the deceased therein under such contract should be sold than that the assets in the hands of the executor or administrator should be applied to the payment of such purchase-money, or that the assets of the estate are insuffi- cient to pay the same, the court shall order the executor or ad- ministrator to dispose of the interest of the deceased therein at public or private sale.*^ If such sale be ordered to be made by public outcry, notice thereof shall be given, as in case of public sale of the personal "Thomas v. Reister, 3 Ind. 369; "Rogers v. Zook, 86 Ind. 237; Thomasson v. Brown, 43 Ind. 203; Fleece v. Jones, 71 Ind. 340; Thomas- Hamrick v. Craven, 39 Ind. 241 ; son v. Brown, 43 Ind. 203. Weyer v. Second Nat. Bank, 57 Ind. •" Burns' R. S. 1908, § 2801 ; Sowle 198; Krutz v. Stewart, Id Ind. 9; Lat- v. Holdridge, 63 Ind. 213. ta V. Miller, 109 Ind. 302, 10 N. E. 100. 17 — Pro. Law. 258 INDIANA PROBATE LAW. § 1 82 property; but if it be ordered to be private, no such notice shall be necessary; and a return of such sale, whether public or private, shall be made at the next term of such court, when it shall be confirmed, unless it shall appear to have been fraudulently made, or that a sum exceeding ten per cent, on the amount bid can be obtained, in which case it shall be vacated and a new sale or- dered.*^*' § 182. Same — Assignment, sale of part, bond. — When such sale shall be confirmed, the court shall direct the executor or ad- ministrator to execute an assignment of such contract to the pur- chaser, which assignment shall vest in such purchaser all the title of the persons having the right to the interest of the deceased in the land thus sold, at the time of the sale; and such purchaser shall have the same remedies against the vendor of such land as the deceased would have had if he were living." If, in the opin- ion of the court, a part of such land may be sold advantageously to the estate of the deceased, so that the monevs arising from such part will pay the amount of the purchase-money due or to become due therefor, such court may order a part only of such land to be sold ; and, in that case, the purchaser need not execute bond as herein required.®^ Such sale shall be made subject to all payments due or to be- come due, and shall not be confirmed by the court until the pur- chaser shall execute a bond to such executor or administrator for his indemnity and the indemnity of the persons entitled to the interest of the deceased in such land, in a penalty of double the whole amount of such payments, with condition that such pur- chaser will make all payments subject to which such sale has been made, and will fully indemnify the executors and administrators of the deceased, and the persons so entitled, against all demands by reason of any covenant or agreement contained in such con- tract so sold, or by reason of any other liability of the deceased on account of the purchase of such land, and against all the cove- *« Burns' R. S. 1908, § 2802. ■ "' Burns' R. S. 1908, § 2805. •" Burns' R. S. 1908, § 2804. § 183 DISPOSITION OF PERSONAL PROPERTY. 259 nants and agreements of the deceased with the vendor of such land in relation thereto.*^'' § 183. Disposition of worthless sale notes. — \\'here an ex- ecutor or administrator shall take a note or obligation of a pur- chaser of the personal estate of the deceased, with surety for the payment of the purchase-money, and the persons executing such note or obligation become insolvent and unable to pay the same or any part thereof before the same falls due or can be collected, the circuit court may allow such executor or administrator a credit for the amount thereof or so much as may remain unpaid, if he shall show to the satisfaction of the court that he used due care and caution in taking such note or obligation and that the surety or sureties were solvent at the time of executing the same ; also that due diligence has been used to collect the amount due thereon. Such claim shall be filed in court, for the use of the creditors, heirs, and legatees of the deceased.^'' This statute throws upon the executor or administrator the burden of showing that he exercised due care and caution ; that he was careful and diligent in accepting the obligations, other- wise he will not be entitled to credit for the note taken, but will be liable for both the principal and the interest thereon.^^ § 184. Same — Who may sue, etc. — Any creditor or legatee whose debt or legacy, in whole or in part, remains unpaid, and any person entitled to share in the distribution of the estate, may sue for and recover such claim thus filed.'" The amount thereof, when collected, shall be paid into the proper circuit court, and shall be applied, first, to the payment of debts; secondly, to the payment of legacies; thirdly, to be dis- tributed to those entitled to distribution, according to their re- spective rights. '^^ The person collecting such claim shall be entitled to retain therefrom all necessary costs and such sum as the court shall ^ Burns' R. S. 1908, § 2803. '= Burns' R. S. 1908, § 2822. '" Burns' R. S. 1908, § 2821. ~' Burns' R. S. 1908, § 2823. "Lindley v. State, 116 Ind. 235, 18 N. E. 45. 260 INDIANA PROBATE LAW. § 1 84 adjudge a reasonable compensation for his services in collecting the same/* Any such person entitled to sue thereon may bring and main- tain suit for the recovery of such debt or claim in the name of the executor or administrator of the estate of the deceased, or, other- wise, for his own use; but such executor or administrator shall not be liable for costs in any such suit, out of his own property nor the property of the deceased." Before any person shall receive from the clerk, having the same in custody, the note, bond, obligation, security, or account on which such claim is founded, for the purpose of commencing suit thereon, he shall execute bond, payable to the state of In- diana, in a penalty of double the amount of such claim, with sufficient approved sureties, with condition that he will faithfully account for and pay into court all sums by him collected on such claims.^" The person suing on such claim may be cited to render an ac- count in the proper circuit court; and if he fail to account or to pay over any sums of money collected thereon, he and his sure- ties may be sued on his bond, at the instance of any creditor or other person, for his proportion of the amount recovered on any such debt or claim ; and the action on such bond shall be instituted and judgment recovered as in actions upon the bonds of executors or administrators.^' In construing all these statutes together the court in Postal v. Kreps, 23 Ind. App. loi, 54 N. E. 816, holds that it is evidently intended that such a suit may be brought while the estate is pend- ing, or after it has been finally settled and the executor or admin- istrator discharged. But if it is brought before final settlement suit should be in the name of the executor or administrator, and in that case the complaint should show that the creditor had filed his claim against the estate. Where the estate has been finally settled any creditor whose debt in whole or in part remains unpaid may sue in his own name, but his complaint must show that his claim '* Burns' R. S. 1908, § 2824. '' Burns' R. S. 1908, § 2825. " Burns' R. S. 1908, § 2826. " Burns' R. S. 1908, § 2827. § 185 DISPOSITION OF PERSONAL PROPERTY. 261 had been administered upon. If such claim had never been filed and brought to the attention of the executor or administrator, he would not be entitled to the remedy provided by these statutes. § 185. Disposition of desperate debts. — Where any debtor of a deceased person shall be unable to pay the whole or any part of the demand or claim of such person, or is insolvent or in doubtful circumstances, or where any legal or equitable de- fense is alleged against such debt or claim, the executor or admin- istrator, with the approbation of the proper circuit court or judge thereof in vacation, may compound with such debtor and give him a discharge, upon receiving the avails agreed upon in such compounding, or upon the payment of the same being sufficiently secured.'^ Whenever any debt or demand due the decedent is desperate on account of the insolvency or doubtful circumstances of the debtor, or any legal or equitable defense is alleged against the same, on account of which it may not be deemed expedient to prosecute an action against such debtor; or whenever, by reason of the remoteness of the place of residence of any debtor, or the ignorance of the executor or administrator of his place of resi- dence, and the smallness of such debt or claim, and the uncer- tainty of collecting the amount thereof, and that the attempt to collect the same would tend to injure and prejudice such estate, the executor or administrator, with the approbation of the cir- cuit court, may file the same in said court for the benefit of the creditors, heirs and legatees of such deceased. '^^ And, as in case of worthless sale notes so filed in court, the executor or administrator may be allowed credit on his account with such estate the full amount of such debt. The creditors, heirs, legatees or others interested in the estate, can accept and collect such debts so filed under like conditions and restrictions as in case of worthless sale notes. '' Burns' R. S. 1908, § 2819. "" Burns' R. S. 1908, § 2820. 262 INDIANA PROBATE LAW. § 1 86 Such claims, debts, etc., may be sold or compounded by an executor or administrator when so ordered by the court.'^*' § 186. Collection of debts and demands. — Every executor and administrator shall proceed with diligence to collect the debts and demands due the estate of the deceased. Where the interests of the estate may be promoted thereby, the court, or judge thereof in vacation, may order the executor or adminis- trator to compound debts, and to buy in property, either per- sonal or real, at sales under execution in favor of the estate. The executor or administrator shall make report to the court of all such purchases, under oath. If personal property be bought in, it shall be sold, and return thereof made, as in case of sales of the personal estate of the decedent. If real estate be bought in, the certificate of purchase or sheriff's deed shall be made to the executor or administrator in trust, for the persons interested in the estate. If real estate be bought in, and it shall become necessary to sell the same for the payment of debts, the real estate, or the certificate of purchase thereof, may, upon the ex parte petition of the executor or administrator, and without no- tice thereof or additional bond, be ordered sold upon such temis and after such notice as the court may direct. Such real estate or certificate of purchase shall be sold to the highest bidder; and upon report and confirmation of the sale, the court shall order an assignment of the certificate of purchase or the execution of a deed to the purchaser. If it be shown to the court by the exec- utor or administrator that the personal assets of the estate in his hands are amply sufficient, without making such sale, to pay the debts and liabilities of such estate, the court may order him to assign the certificate or convey the land, as the case may be, to the heirs, devisees, and legatees of the deceased, to be held by them in the same proportions in which the personal estate of the decedent would be distributed to them, respectively, at law or under the will of the deceased. When real estate shall be bought in as aforesaid, the executor or administrator shall be liable '"Reynolds v. Linard. 95 Ind. 48; Postal v. Kreps, 23 Ind. App. 101, 54 N. E. 816. § 187 DISPOSITION OF PERSONAL PROPERTY. 263 therefor, and for the proceeds thereof, in hke manner as if the same had been personal property.-^ § 187. Persons concealing goods. — Upon complaint made to the court by any executor or administrator, under oath, against any one suspected and believed to have concealed, converted, or carried away any of the goods of the deceased, such court may cite such person to appear before it and to be examined, on oath, upon the matter of such complaint ; and if the person thus cited shall refuse to appear and to answer such interrogatories as shall be lawfully propounded to him, the court may commit such per- son, upon order of attachment, to the jail of the county, until the interrogatories propounded by the court shall be answered on oath ; and all such interrogatories, and the answers thereto, shall be in writing, and signed by the party examined, and filed in such court.®' § 188. Executor, etc., may administer oaths. — It is pro- vided by statute that : "Ever}- executor and administrator is hereby invested with authority, in the administration of the estate committed to his charge, to administer the oaths and take and certify the affidavits by this act required to be made by the ap- praisers of the personal and real estate of the deceased, the clerk of the sale of such personal estate, and persons filing claims against the estate. ^^ ^^ Burns' R. S. 1908, i 2817. '' Burns' R. S. 1908, § 2987. ^ Burns' R. S. 1908, § 2818. CHAPTER X. DISPOSITION OF REAL PROPERTY. § 189. Real estate liable for debts. §213. 190. Possession of real estate. 214. 191. Sale without an order of court. 215. 192. Sales under a will— Statutes. 216. 193. Same — When will does not con- 217. fer power. 218. 194. Exercise of power by one of 219. two executors. 220. 195. Sale to pay debts, when al- lowed. 221. 196. Same — Marshaling assets. 222. 197. Conveyance by heir or devisee, eflfect of. 223. 198. May redeem land, may lease 224. when. 225. 199. What real estate liable to sale. 226. 200. Property fraudulently conveyed 227. by decedent. 228. 201. Same — Suit by creditor. 202. Same— When suit must be 229. brought. 230. 203. Who may apply to sell land, and when. 231. 204. Requisites of petition — The 232. statute. 233. 205. Who should be made parties. 234. 206. What issues petition tenders. 235. 207. The proceeding sui generis. 208. Petition by creditor. 236. 209. What is necessary to jurisdic- tion. 237. 210. What notice required. 211. When notice may be waived. 238. 212. Minor defendants, guardian ad 239. litem. 240. 264 Hearing on the petition. The order of sale. Order carried out by successor. Inventory and appraisement. Bond for sale of real estate. The interest of the widow. Same — The statute. Same — When the interest may be sold. Same — Sale to pay liens. Same — Setting off the widow's interest. Same — Right of election. The interest of the widower. As to liens on the real estate. Mortgages on the real estate. Mortgagee's right to file claim. Proceedings to enforce lien suspended. Same — Statute construed. Bond to secure payment of lien after sale. As to mortgage by an heir. The sale, how made, etc. Sale may be on credit. Notice of the sale to be given. Representations by an adminis- trator or executor. Purchase by executor or ad- ministrator. Such sale void or voidable, limitation, resale, etc. Report and confirmation of sale. The deed and its approval. When a resale may be had. §189 DISPOSITION OF REAL PROPERTY. 265 241. Setting sale aside on account of 245. Giving bond to prevent sale, etc. defects. 246. Preventing sale and barring 242. Same — Time witliin virhich ac- claims. tion must be brought. 247. Conveyance upon title bond, 243. Same — When heirs estopped. the statute. 244. Mortgage and lease of real es- 248. Same — Statute construed. tate. 249. Legalizing act. § 189, Real estate liable for debts. — By the early common law a decedent's debts had to be paid out of his personal estate. His lands were inalienable and could not be sold for the payment of his debts. This doctrine grew out of the peculiar manner in which real estate was held under the feudal system. But the growth of trade and commerce made it necessary that creditors should be provided with some means for satisfying their claims by compulsory process against a debtor's land. Hence has grown the right of execution, attachment, etc., against a debtor's real estate in his lifetime, and the right of his executor or adminis- trator, after his death, to sell his real estate to make assets with which to pay his debts. By the force of the statute in this state, the real estate of an intestate is as completely subject to his debts as is his personal estate, and even though the personal estate is wasted by the ad- ministrator, the purchaser of the real estate from an heir is not protected.^ In one case it is said, "the statute not only gives the adminis- trator the right, but makes it his duty, when the personal prop- erty is not sufficient, to convert the real estate into assets for the payment of debts. Where this right is asserted; and the lands are sold and conveyed, the title to the land which descended to the heir is completely divested. And, although the heir may have sold and conveyed the land, the conveyance made by an admin- istrator under the order of the court is not in any wise afifected or impaired by the previous incumbrance or conveyance by the heir. This conclusion logically results from the fact that, under the statutes of our state, the real and personal property of an 'Nettleton v. Dixon, 2 Ind. 446; Fiscus v. Moore, 121 Ind. 547, 23 N, E. 362, 7 L. R. A. 235. 266 INDIANA PROBATE LAW. 190 intestate descend to the same persons and in the same propor- tions, and both are equally chargeable with the payment of his debts, with the exception that the personal estate must be ex- hausted first."" The wasting of the personal assets of the decedent by his executor or administrator does not relieve the real estate from liability for the debts.^ If, however, such wasting is a wrongful one by the administrator, he would perhaps be liable on his bond.'' But if the assets are wasted or destroyed without fault of the executor or administrator; or by reason of a decrease in the value of such assets, or the insolvency of the administrator or executor and their sureties, the loss falls on the estate.^ This power of sale is purely statutory. The executor or ad- ministrator takes no title to or interest in the real estate of his decedent, but only a naked power to sell, and this power is con- ditioned upon the insufficiency of the personal estate to pay the debts of the decedent.*^ § 190. Possession of real estate. — As a general rule, land, upon the death of an ancestor, passes to the heirs or devisees, who are immediately vested with the title thereto and the right of possession, and are entitled to the full enjoyment of such land. And at common law the title to real property vested absolutely in the heirs upon the death of the ancestor, and was not subject to be made assets for the payment of debts.^ = Fiscus V. Moore, 121 Ind. 547, 23 ' Alerritt v. Merritt, 62 Mo. 150 ; N. E. 362, 7 L. R. A. 235; Nelson v. Foley v. McDonald, 46 Miss. 238; Murfee, 69 Ala. 598. Personal prop- Carlton v. Byers, 70 N. Car. 691. erty is the primary fund for the pay- ' Faran v. Robinson, 17 Ohio St. ment of debts and legacies, even 242, 93 Am. Dec. 617; Evans v. Fish- where they expressly were charged on er, 40 Miss. 643 ; Lilly v. Wooley, 94 the real estate. It should only be re- N. Car. 412; May v. Parham, 68 Ala. sorted to as an auxiliary fund after 253. the personalty has been exhausted. "Tippecanoe Loan &c. Co. v. Carr, Stevens v. Gregg, 10 Gill & J. (Md.) 40 Ind. App. 125, 78 N. E. 1043; Moore v. Moore, 155 Ind. 261, 57 N. 143 ^Conger v. Cook, 56 Iowa 117, 8 E. 242. N. W. 782; Smith v. Brown, 99 N. "Fiscus v. Moore, 121 Ind. 547, 23 Car. 377. 6 S. E. 667; Van Bibber v. N. E. 362, 7 L. R. A. 235. Julian, 81 Mo. 618. IQO DISPOSITION OF REAL PROPERTY, 267 An executor or administrator has no power over a decedent's real estate except what may be given him by statute or by the will. And he cannot, in the absence of some authority, take or pay out money from it as such executor or administrator.^ Nor can an executor or administrator prevent the heirs or devisees of a decedent from exercising their right to the title and possession of their ancestor's real estate. Such heirs may have partition of such real estate, and the title will vest in them until it passes to a purchaser at the sale, by the executor or administrator for the payment of the debts of such ancestor.^ The title to the real estate, at the death of the ancestor intestate, vests at the instant of his death in his heirs, and they take and retain such title with all the rights and incidents belonging thereto, until the administrator of the ancestor effectively asserts his right thereto for the purposes provided in the statute.^" The right of action in ejectment, and for waste and injury to the freehold after the ancestor's death is in the heirs and not in the * Hankins v. Kimball, 57 Ind. 42 ; Taylor v. Fickas, 64 Ind. 167, 31 Am. Rep. 114; Hendrix v. Hendrix, 65 Ind. 329; Evans v. Hardy, 76 Ind. 527; Kidwell v. Kidwell, 84 Ind. 224; Gregory v. Wilson, 52 Ind. 233 ; Dun- can V. Gainey, 108 Ind. 579, 9 N. E. 470. ^Cole V. Lafontaine, 84 Ind. 446; Hankins v. Kimball, 57 Ind. 42. The devisee of lands and his grantee take subject to the payment of the testa- tor's debts ; and it is an executor's dut\' to apply to the proper court for an order for the sale of land to pay debts when necessary, and it is prop- er to order such sale by him on his own petition whenever it would be proper to order it on the petition of -creditors. The consent of an exec- utor or administrator to the sale of land of the decedent by an heir or devisee cannot divest the creditors of the decedent of their right to have their debts made out of the land, and cannot estop such executor or admin- istrator when the rights of creditors would be affected. Pell v. Farquar, 3 Blackf. (Ind.) 331, overruled. Aloncrief v. IMoncrief, IZ Ind. 587. ^''Shaw v. Hoadley, 8 Blackf. (Ind.) 165; Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237; Streeter v. Paton, 7 Mich. 341; Jones v. Bill- stein, 28 Wis. 221; Overturf v. Du- gan, 29 Ohio St. 230. Where a tes- tator has devised his real estate, charging it with the payment of his debts, his personal representative, if the personal estate be insufficient, may obtain an order to sell the lands, the devise being no obstacle what- ever. Bennett v. Gaddis, 79 Ind. 347. In such case the petition is not bad, as against the devisee, for a failure to aver that the will has been ad- mitted to probate; for without the will he would have no interest in the land. Bennett v. Gaddis, 79 Ind. 347. 268 INDIANA PROBATE LAW. § IQI administrator.^^ The administrator is not entitled to the posses- sion of the real estate of his decedent unless it becomes necessary to sell it to pay debts. For this reason he cannot maintain an action for possession, nor in any manner litigate the title ; nor can he claim the right to possession in such a manner as to make that possession adverse to the heirs.^" Until it becomes necessary to sell an intestate's land to pay debts, his administrator's right therein is a mere naked power resting only upon the contingency that the personal property will be insufficient to pay such debts. ^^ Until the happening of that contingency the possession belongs to the heirs; and if there should be no debts, or sufficient personal property to pay them, the administrator has no right to the possession of the real estate." Where a Avill gives to the executor a mere naked power to sell the real estate, neither the title nor the right to the possession of such real estate passes to such executor, nor is he liable for the rent thereof. ^^ § 191. Sale without an order of court. — An administrator cannot sell real estate of his decedent without an order of court previously obtained therefor, but an executor sometimes may. If a testator directs by will that his real estate be sold without declaring by whom the sale shall be made, the power to sell, if no contrary intention appear from the will, shall vest in the executor.^® Williams on Executors (7th ed.), p. 655, in constru- ing a general and indefinite direction by a testator, in his will, for the sale of his property says : "It sometimes happens that a testator directs his estate to be disposed of for certain purposes, "jNIarsh v. Waupaca County, 38 29 N. E. 188; Fike v. Green, 64 N. Wis. 250 ; ^litchell v. State, 63 Ind. Car. 665 ; Laidley v. Kline, 8 W. Va. 574. 218. "Comparet v. Randall, 4 Ind. 55; " Hillman v. Stephens, 16 N. Y. Kidwell V. Kidwell, 84 Ind. 224; 278; Phelps v. Funkhouser, 39 111. Flood V. Pilgrim, 32 Wis. 376; Hart 401; Gladson v. Whitney, 9 Iowa V. Kendall, 82 Ala. 144, 3 So. 41; 267; Stewart v. Smiley, 46 Ark. 373. Noon V. Finnegan, 29 Minn. 418, 13 "Dunn v. Renick, 33 W. Va. 476, N. W. 197 ; King v. Boyd, 4 Ore. 326. 10 S. E. 810. "Harding v. Le Moyne, 114 111. 65, " Alunson v. Cole, 98 Ind. 502. § 1 91 DISPOSITION OF REAL PROPERTY. 269 without declaring by whom the sale shall be made. In the ab- sence of such a declaration, if the proceeds be distributable by the executor, he shall have the power by implication. Thus a power in a will to sell or mortgage, without naming a donee will, if a contrary intention do not appear, vest in the executor, if the fund is to be distributable by him, either for the payment of debts or legacies." The making of certain items charges upon lands which have been devised, or directing that the lands be sold for the payment of debts, does not authorize an executor to sell such lands with- out an order of court.^^ But when the will confers upon the executor the power to sell and convey the lands of his testator, he may sell and make con- veyances of such lands without first procuring from the court an order for such sale.^® In cases falling within the statutes it is not necessary to obtain an order of court to authorize the sale of the real estate so specially devised. And where the will directs that the real estate thus devised be appraised before sale, and in fact such ap- praisement is not made although the sale is made and the deed executed and delivered in accordance with the terms of the will, in the absence of proof to the contrary, the court will presume that such appraisement was made.^^ Where full power is, by the will, conferred upon the executor to sell and convey real estate of his testator without reporting either the sales or conveyances to the court for confirmation, such executor is not -thereby excused from properly applying the pro- ceeds of such sale to the payment of claims against the estate in their order, and the court can compel the prompt application of the money so received to such purpose."" A power is defined to be an authority whereby the person is "Duncan v. Gainey, 108 Ind. 579, "Davis v. Hoover, 112 Ind. 423, 9 N. E. 470. 14 N. E. 468. "Munson v. Cole, 98 Ind. 502; =» Phelps v. Martin, 74 Ind. 339; Ex Davis V. Hoover, 112 Ind. 423, 14 N. parte Hayes, 88 Ind. 1; Ex parte E. 468; Bailey v. Rinker, 146 Ind. Wright, 65 Ind. 504. 129, 45 N. E. 38. 270 INDIANA PROBATE LAW. § I9I enabled to dispose of an interest in real estate vested in himself or another, and may be conferred by will without the use of technical words. Any expression in the will showing an intention to confer upon the designated persons the power to dispose of the testator's property by deed will be sufficient.-^ A power of sale is often implied from directions to the execu- tors to divide the property, and it appears from the nature of the property or the context of the will that a division of the property in specie is impossible."^ A power of sale was implied from a devise of the use of land "until the sale and conveyance of said premises by my executor as hereinafter provided" and no subsequent provision followed.-^ To invest an executor with "full, ample and complete power to dispose in such manner as he thinks proper" of the testator's real estate, gives him both power to sell and convey without any order of court.-* The law is well settled that a devise of the rents and profits of land is equivalent to a devise of the land itself, and will carry the legal as well as the beneficial interests therein. And the rule is the same where the devise is of the income."^ Where the devisee of a life estate has an unqualified right to sell, with the power of spending the proceeds at pleasure in his lifetime, or of disposing of it by will, such power to sell, in the absence of a bequest over, is construed as indicating an intention on the part of the testator to create an absolute estate in fee. And even though there be a devise over, an absolute power of dispo- sition may create an absolute estate in the first taker, if the power "' Page on Wills, 821. •' Thompson v. Schenck, 16 Ind. "Mulligan v. Lambe, 178 111. 130, 194; Roy v. Rowe, 90 Ind. 54; Com- 52 N. E. 1052; Story v. Palmer, 46 mons v. Commons, 115 Ind. 162, 16 N. J. Eq. 1, 18 Atl. Z62>; lasigi v. N. E. 820, 17 N. E. 271; Bowen v. lasigi, 161 Mass. 75, 36 N. E. 579; Swander, 121 Ind. 164, 22 N. E. 725; Mimms V. Delk, 42 S. Car. 195, 20 Hunt v. Williams, 126 Ind. 493, 26 N. S. E. 91. E. 177; Stout v. Dunning, 72 Ind. "=• Cahil V. Russell, 140 N. Y. 402, 343 ; Rumsey v. Durham, 5 Ind. 71 ; 35 N. E. 664. 2 Jarman on Wills, 403; Butterfield -* Steele v. Worthington, 2 Ohio v. Haskins, ZZ Me. 392. 182. 192 DISPOSITION OF REAL PROPERTY. 2/1 of disposition is plainly inconsistent with the purpose to create an estate for life."*' Where a will, by its terms, so disposes of the proceeds to be derived from a sale of the real estate as to blend and mix them with the personal estate, the executor has, by implication, power to sell such real estate.-' And a direction in the will to convert the whole estate into money, without specifying who shall do it, or how it shall be done, confers upon the executor, by implication, the power to sell the real estate.-® § 192. Sales under a will— Statutes. — The power to sell without an order of court is given in this state by statute as fol- lows : \Mien real estate or any interest therein is devised by the will, or directed to be sold for the payment of debts or legacies, the executor shall proceed to dispose of the estate and apply the same according to the provisions of the will.-^ When the real estate shall have been devised, as mentioned in above section, it shall not be necessary for the executor or ad- ministrator with the w^ill annexed to file a petition or procure an order of court for the sale of the real estate. Unless different provision be made in the will touching the manner of the sale, it shall be governed, as to the inventory and appraisement of the ^•^ Robertson v. Robertson, 120 Ind. — 96 N. E. 481. A mere pow- 333, 22 N. E. 310; Tower v. Hart- er given by will to an exec- ford, 115 Ind. 186, 17 N. E. 281; utor to sell lands does not give VanGorder v. Smith, 99 Ind. 404. him the right of possession. Rubot- ='Lippincott v. Lippincott, 19 N. J. tom v. Morrow, 24 Ind. 202, 87 Am. Eq. 121; Council v. Averett, 95 N. Dec. 324. If an executor collects Car. 131; ^lott v. Ackerman, 92 N. rents when not authorized by law to Y 539_ ' do so, the estate is not liable for such =* Putnam v. Storv. 132 Mass. 205 ; rents. Hendrix v. Hendrix, 65 Ind. Collier V. Grimesevr36 Ohio St. 17; 329; Trimble v. Pollock, 77 Ind. 576; Lantz V. Bover, 81 Pa. St. 325. If Evans v. Hardy, 76 Ind. 527. the testator directs that his real estate » Burns' R. S. 1908, § 2876. If a be sold without declaring by whom testator directs that his real estate be the sale shall be made, the power to sold, without declaring by whom the sell, if no contrary intention appears, sale shall be made, the power to sell, vests in the executor. Davis v. if no contrary intention appear, vests Hoover, 112 Ind. 423, 14 X. E. in the executor, if the proceeds are 468; Walling v. Scott, — Ind. App. distributable by him, or if the duties 272 INDIANA PROBATE LAW. § 193 real estate, notice and terms of sale, report and confirmation thereof and deed, by the provisions of the statute in reference to the sales of real estate by administrators for the payment of debts. Such sale, in the absence of directions in the will, may be at public or private vendue, in the discretion of the executor or administrator with the will annexed; and in case of private sale, notice thereof shall be given as in case of public sale, unless the appraised value of the real estate shall not exceed one thousand dollars, in which case the sale may be made in his discretion, w^ithout notice ; such sale, i f at public vendue, shall not be for less than two-thirds of its appraised value, and, if at private vendue, for not less than the appraised value thereof.^" While the above statute makes it unnecessary for an, executor, in the cases therein mentioned, to either file a petition or procure an order of court for the sale of real estate so devised, yet unless the time and manner of sale is left to the discretion of the execu- tor, or the will itself prescribes how the sale shall be made, it would seem to be necessary to file in court an inventory and appraisement of the real estate, give notice of the sale, and report the same together with the deed to the court having proper pro- bate jurisdiction for approval and confirmation, but unless the will requires it no additional bond need be filed. ^^ § 193. Same — When will does not confer power. — In con- struing wills the courts have made a distinction between a devise to the executor of real estate, with directions to sell the same and make distribution of the proceeds, and a devise which directs that real estate be sold and the proceeds distributed but without pass- ing the legal title to the executor. In the one case it is held that the executor is the custodian of the title until divested by the sale, while in the other the title is held to be in the beneficiary or the heir until the sale is made.^" imposed with reference thereto are Davis v. Hoover, 112 Ind. 423, 14 N. such as usually devolve upon an exec- E. 468 ; Valentine v. Wysor, 123 Ind. utor. Davis v. Hoover, 112 Ind. 47. 23 N. E. 1076, 7 L. R. A. 788n. 423, 14 X. E. 468. ''3 Jarman on Wills, 36; Brumfield '"Burns' R. S. 1908, § 2877. v. Drook, 101 Ind. 190; Simonds v. ^'Munson v. Cole, 98 Ind. 502; Harris, 92 Ind. 505; Thompson v. 193 DISPOSITION OF REAL PROPERTY. 273 A mere direction to an executor to sell lands for the purpose of paying legacies, or making distribution, does not vest any title to the land in the executor. To cut off the heir at law the title must be devised, expressly or by implication, to some other person. Where there is merely a naked power to sell the estate and dis- tribute the proceeds, it is not necessary that the executor should have the title to the estate to enable him fully to carry into effect the intentions of the testator. In that case the legal title to the estate will be divested the moment the executor executes his trust, but in the meantime, and until a sale is made, the heir is entitled to the profits.^' The doctrine is thus stated in an old work: "A devise of land to executors to sell passes the interest in it, but a devise that executors shall sell the land, or that lands shall be sold by the executors, gives them but a power, and it Schenck, 16 Ind. 194; Bowen v. Swander, 121 Ind. 164, 22 N. E. 725. "I also direct that my executor shall, after the decease of my wife, sell and dispose of all my property, both real and personal, * * * and di- vide the proceeds among my ten chil- dren," confers upon the executors a mere naked power to sell, and does not invest them with any interest in or title to the property. Brumfield v. Drook. 101 Ind. 190; Doe v. Lanius, 3 Ind. 441. 56 Am. Dec. 518n; Wil- son V. Rudd, 19 Ind. 101. A mere naked power or direction given by will to an executor to sell lands does not vest any title to the lands in the executor. Doe v. Lanius, 3 Ind. 441, 56 Am. Dec. 518n; Thompson v. Schenck, 16 Ind. 194; Brumfield v. Drook, 101 Ind. 190. When a will confers upon an executor power to sell and convey lands, such executor may sell and make conveyances with- out applying to the court for an order of sale. Munson v. Cole, 98 Ind. 502; Davis v. Hoover, 112 Ind. 423, 14 X. E. 468. The making of certain items charges upon devised lands, or directing that lands be sold for the payment of debts, will not authorize an executor to sell such lands with- out an order of court. Duncan v. Gainey, 108 Ind. 579, 9 N. E. 470. If lands are improperly sold without an order of court, and the purchase- money is applied to the payment of debts, the purchaser becomes the equitable owner of such debts. Dun- can v. Gainey, 108 Ind. 579, 9 X. E. 470. "^ Doe V. Lanius, 3 Ind. 441, 56 Am. Dec. 518n; Mclntire v. Cross, 3 Ind. 444; Rubottom v. Morrow, 24 Ind. 202, 87 Am. Dec. 324. In Doe v. Lanius, 3 Ind. 441, 56 Am. Dec. 518n, it is said: "We think it is well set- tled by the current of American as well as of English decisions, that a mere direction to an executor to sell lands for the purpose of paying legacies or making distribution, does not vest any title to the land in the executor." 18— Pro. L.\w. 274 INDIANA PROBATE LAW. § 194 seems that even a devise of land by a testator to be sold by his executors, without words giving the estate to them, will invest them with a power only, and not give them an interest. "^^ In the absence of a will a decedent's land is not distributed, but de- scends to his heirs ; nor, where there is a will, are such lands dis- tributed in the statutory and ordinary sense of the term distribu- tion, but such distribution is made according to the terms of the will.'' § 194. Exercise of power by one of two executors. — The rule that the act of one joint executor is the act of all applies in the exercise of a power of sale under a will, the statute providing that when any real estate or interest therein is given or devised, by any will legally executed, to the executors therein named, or any of them, to be sold by them or any of them ; or where such estate is ordered by any will to be sold by the executors, and any executor or executors shall neglect or refuse to take upon him or them the execution of such will, then all sales made by the execu- tor or executors who shall take upon him or them the execution of such will shall be equally valid as if the other executor or executors had joined in such sale.'" The question as to the right of the successor of an executor to exercise a power of sale conferred by will upon the original executor is one that must turn upon the manifest intention of the testator as found in the will. If the power of sale given is man- datory in character, the executor being merely the minister ap- pointed for its exercise, any successor to such executor may carry out such power. But if the exercise of the power of sale is left to the personal trust and discretion of the executor, the right to exercise it rests in him and does not pass to his successor in office." § 195. Sale to pay debts, when allowed. — Neither an ex- ecutor nor an administrator has power to sell real estate of his ^ Sugden on Powers, 129. Tulone, 9 N. J. Eq. 146 ; Farrar v. '= Beard v. Lofton, 102 Ind. 408, 2 ^IcCue, 89 N. Y. 139; Railroad Co. N. E. 129. V. Hutchins, 37 Ohio. St. 282; Sar- '•= Burns' R. S. 1908, § 2878. gent v. Sibley, 11 Bull. 177. '' Page on Wills, 830 ; Chambers v. 8 195 DISPOSITION OF REAL PROPERTY. 275 decedent except such power be found in the will or in the statute. The statute only authorizes a sale when the land is needed to pay debts. It is provided that if the personal estate of a decedent shall be insufficient for the payment of the liabilities thereof, the real estate, if any, shall be sold to make assets for the payment of such liabilities.^^ Where the will makes specific bequests a charge or lien on the real estate of the testator, it is the duty of executor or adminis- trator with the will annexed to sell such real estate for their pay- ment when he finds it necessary to do so.^** The law does not confer upon an executor or administrator any authority to sell and convey real estate of his decedent except by order of the proper court, in the absence of a testamentary provision authorizing such sale.*" The personal estate of a decedent constitutes the primary fund from which his debts are to be paid ; and by this statute such de- cedent's real estate cannot be sold by his personal representatives unless his personal estate is insufficient to pay the liabilities of such decedent.*^ This rule may, however, be changed by a tes- tator so as to exonerate his personal estate, and charge all the debts upon the realty. But he will not be taken to have done so unless a clear expression of such an intention can be gathered from the whole will.*" The personal estate is also the primary fund out of which lega- cies are to be paid, and a legatee cannot have his legacy made a charge upon the testator's real estate unless he can show that such testator had not sufficient personal estate at the time he executed the will, or that it could not be made available for the payment of legacies. The right to resort to the real estate is not a primary '^ Burns' R. S. 1908, § 2848. Ind. 42; Edwards v. Haverstick, 47 ** American Cannel Coal Co. v. Ind. 138. Clemens, 132 Ind. 163, 31 N. E. 786; "Scott v. Morrison, 5 Ind. 551; Davidson v. Coon, 125 Ind. 497, 25 Newcomer v. Wallace, 30 Ind. 216; X. E. 601, 9 L. R. A. 584n. Clarke v. Henshaw, 30 Ind. 144; Ed- *" Duncan v. Gainey, 108 Ind. 579, wards v. Haverstick, 47 Ind. 138; 9 N. E. 470; Kidwell v. Kidwell, 84 Chandler v. Chandler, 78 Ind. 417; Ind. 224; Hankins v. Kimball, 57 Barton v. Bryant, 2 Ind. 189. *"'Scott v. Morrison, 5 Ind. 551. 276 INDIANA PROBATE LAW. § 1 96 one, and a legatee who asserts such right must show affirmatively such facts as call the right into existence.*^ It is made the duty of an executor to apply to the proper court for an order for the sale of land to pay debts, when necessary, and it is proper for the court to order a sale upon his petition. The executor is a trustee, invested with the power, in a proper case and on the order of the proper court, to convert real estate into money for the benefit of the creditors of the estate.** Costs and expenses of administration are a charge against the estate of a decedent, and constitute such liability within the mean- ing of this statute as will authorize an executor or administrator of such decedent, in the absence of personal property, to sell real estate of the deceased to pay such costs and exi^enses.*^ This statute so modifies the common-law rule that under it an administrator may sell his decedent's real estate to make assets for the payment of debts when there is insufficient personal estate. This power conferred upon an administrator is purely statutory and can legally be exercised only under an order of court.*" § 196. Same — Marshaling assets. — \\'here a testator in his will, in general terms, directs the payment of all his debts, and also disposes in such will of all his property both real and per- sonal without any specific direction as to what portion of such property shall be devoted to the payment of debts, a question sometimes arises as between the legatees, devisees and executor as to how the assets of the estate shall be marshalled for the pay- ment of the debts. The general rule is, as in case of intestacy, that the personal property must be first exhausted. But as to the real estate the statute provides that whenever any part of the real estate of a testator is left undevised by his will, and his personal ^'' Duncan v. Wallace, 114 Ind. 169, 26 N. E. 794; Stevens v. Burgess, 61 16 N. E. 137; Lindsey v. Lindsey, 45 Me. 89; Abila v. Burnett, 33 Cal. Ind. 552. 658; Griffith v. Frederick County " Moncrief v. Moncrief, 73 Ind. Bank, 6 Gill & J. (Aid.) 424. 587. ■" Tippecanoe Loan &c. Co. v. Carr, *" Dunning v. Driver, 25 Ind. 269; 40 Ind. App. 125, 78 N. E. 1043; Personette v. Johnson, 40 X. J. Eq. Moore v. Moore, 155 Ind. 261, 57 N. 173; Falley v. Gribling, 128 Ind. 110, E. 242. § 196 DISPOSITION OF REAL PROPERTY. 277 estate shall be insufficient for the pa3'ment of his debts, the un- devised real estate shall be first chargeable with debts, in exonera- tion, as far as it will go, of the real estate that is devised, unless it shall appear from the will that a different disposition of the assets for the payment of his debts was made by the testator, when they shall, for that purpose, be disposed of in conformity with the provisions of the will.*^ When any estate, real or personal, that is devised, shall be taken, in whole or in part, from the devisee for the payment of the debts of the testator, all the other devisees shall contribute their respective portions of the loss to the person from whom the estate is taken, so as to make the loss fall equally on such devisees according to the estimated value of the property received by each of them, unless the testator, in his will, in making a specific devise, shall have virtually exempted any devisee from his liability for the payment of the debts with the others, or shall have, by any provision in his will, required any appropriation of his estate, or any part of it, for the payment of his debts, different from that prescribed in this section, in which case the estate shall be applied in conformity with the provisions of the will/® From these sections of the statute it is clearly apparent that two facts must concur in order that an executor may sell devised land for the payment of debts: first, that the personal property not specifically bequeathed is insufficient to discharge the debts; second, that the testator left no real estate undisposed of by will, or that the real estate undevised, if any, was not sufficient for the purpose of discharging the debts of the testator/" Whenever any person shall have devised his estate, or any part thereof, and any of his real estate subject to a mortgage, executed by such testator, shall descend to an heir or pass to a devisee, and no specific direction is given in the will for the payment of such mortgage, the same shall be discharged as follows : First. If such testator shall have charged any particular part "Burns' R. S. 1908, § 3125; Ditton *" Hunt v. Hinshaw, 33 Ind. App. V. Hart, — Ind. — 95 N. E. 119. 75, 70 N. E. 825. ^'Burns' R. S. 1908, § 3124. 278 INDIANA PROBATE LAW. § 1 9/ of his estate, real or personal, with the payment of his debts, such mortgage shall be considered a part of such debts. Second. If the will contain no direction as to what part of his estate shall be taken for the payment of his debts, and any part of his personal estate shall be unbequeathed or undisposed of by his will, such mortgage shall be included among his debts, to be dis- charged out of such estate unbequeathed or undisposed of.^" Lands which pass under the residuary clause of a will shall be first sold in payment of the testator's debts before resort can be had to lands specifically devised. '^^ The devise of land specific- ally charged by the testator with the payment of all liis debts, does not exonerate other lands of his where the lands first charged prove insufficient for the payment of his debts." Whenever an estate has been settled under the provisions of the last will of the deceased, and lands have been devised by such will, and the lands have not been sold to pay debts, it shall be the duty of the clerk of the court in which said estate was settled, to cause such will to be recorded in the recorder's office of tlie county within forty-five days from the settlement of said estate, and he shall tax and collect, as cost of said estate, a fee for the auditor and recorder equivalent to their fees for like services in the transfer and recording of deeds." § 197. Conveyance by heir or devisee, effect of. — The lia- bility of the land for the debts of the ancestor is one of the bur- dens attaching to the inheritance, from which it cannot be re- lieved by any act of the heir short of paying the debts. ^* An heir cannot by any conveyance discharge the land descended to him from its liability for the debts of his ancestors, nor can the administrator and the heirs make any arrangement with a portion of the creditors of the estate by which the assets of such estate * Burns' R. S. 1908, § 3129. Scherer v. Ingerman, 110 Ind. 428, 11 " Ditton V. Hart, — Ind. — , 95 N. N. E. 8, 12 N. E. 304 ; Weakley v. E. 119. Conradt, 56 Ind. 430; Fiscus v. '''Duncan v. Gainey, 108 Ind. 579, Moore, 121 Ind. 547, 23 N. E. 362, 7 9 N. E. 470. L. R. A. 235; Moore v. Moore, 155 '''Burns' R. S. 1908, § 3172. Ind. 261, 57 N. E. 242. "Miller v. Buell, 92 Ind. 482; § 197 DISPOSITION OF REAL PROPERTY. 279 will be diverted from other creditors who are not parties to such arrangement.^^ And an administrator who consents to the sale of his intestate's lands by the heirs of such intestate does not thereby estop himself from tlie right to afterwards subject such lands to sale for the payment of the debts of the estate. A contrary doc- trine was announced in the case of Pell v. Farquar, 3 Blkf. (Ind.) 331, but upon this one point that case is now overruled.^'' It is not in the power of a third person to impair or embarrass the personal representatives of a decedent in the settlement of the estate by dealing with the heirs, upon the supposition that their interest is of a certain or fixed character. A stranger will not be allowed to intermeddle so as to destroy the equality of de- scent and distribution. The right of heirs to participate equally in the estate of their ancestor is superior to that of a lienholder with notice." A purchaser acquires precisely the same right and interest which the heir has from whom he takes a conveyance, and noth- ing more. He is, therefore, bound to know that, until the estate is finally settled, the sale of the real estate may become necessary for the payment of debts. ^^ Such purchaser takes the property subject to the debts of the ancestor, and, although his title may, by reason of a sale by the administrator, wholly fail, he can neither recover back the pur- ^ Elliott V. Moore, 5 Blackf. (Ind.) was an answer that the defendant 270; Whisnand v. Small, 65 Ind. purchased the land from the heirs 120. for full value, with and upon the '" r^Ioncrief v. Moncrief, Ti Ind. faith of consent to such purchase 587; Cole v. Lafontaine, 84 Ind. 446; given by the administrator. Cole v. Moore v. Moore, 155 Ind. 261, 57 N. Lafontaine, 84 Ind. 446. E. 2:42. =" Weakley v. Conradt, 56 Ind. 430; "Foltz v. Wert, 103 Ind. 404, 2 Baker v. Griffitt, 83 Ind. 411; Fiscus N. E. 950 ; Fiscus v. Moore, 121 Ind. v. Moore, 121 Ind. 547, 23 N. E. 362, 547, 23 N. E. 362, 7 L. R. A. 235. To 7 L. R. A. 235. An heir, who has a petition to sell real estate, an an- conveyed his interest in a decedent's swer that the defendant was a pur- real estate, is not a necessary party chaser from an heir to whom the to an application by the administrator land was awarded by judgment in for an order to sell such real estate, partition, with the knowledge and and if not a party is not concluded consent of the administrator, showed by the proceedings. Piatt v. Brick- no estoppel and was bad; so, also, ley, 119 Ind. 2>Z2), 21 N. E. 906. 28o INDIANA PROBATE LAW. § 1 97 chase-money nor defend against the collection of any part un- paid. ^^ A purchaser from the heir of a portion of the real estate who, to prevent a sale of the land, pays off the indebtedness of the estate, is entitled to contribution from one who has also pur- chased other portions of the same real estate. For where one discharges a lien which rests alike upon the property of himself and others he is entitled to contribution from those whose prop- erty has been thus relieved from the common burden. The lien of the creditor, or rather his right to have his claim satisfied, at- taches to the entire real estate of the decedent and cannot be con- fined to any particular portion of it.*'" Purchasers of a decedent's real estate from his heirs at law, prior to the final settlement of his estate, take it subject to the right of the executor or administrator of such estate to sell such land for the purpose of making assets for the payment of the debts of the decedent."^ If the heirs of a decedent sell and con- vey his land to one who is acting as administrator of such dece- dent's estate, such sale, in the absence of fraud, will be allowed to stand. It is not void, but voidable, and can only be avoided by '"Cartright v. Briggs, 41 Ind. 184; (Ky.) 419, 48 Am. Dec. 400; Scherer Brimner v. Brennan, 49 Ind. 98; v. Ingerman, 110 Ind. 428, 11 N. E. Weakley v. Conradt, 56 Ind. 430. In 8, 12 X. E. 304; Chaplin v. Sullivan, a proceeding by an administrator to 128 Ind. 50, 27 N. E. 425. In this sell real estate to pay alleged claims last case the court says : "The heirs against the estate, the owner or own- of the decedent, John Chaplin, took ers of the real estate have the right, the land left by him, charged with in order to protect it, to defend the payment of his debts. They against the proceeding, and the claims could not escape this liability if they upon their merits, notwithstanding wished. No one could acquire any they may have been allowed by the rights in the land superior to the administrator. Cole v. Lafontaine, 84 right of the creditors of the estate Ind. 446; Jackson v. Weaver, 98 Ind. to compel payment of their claim 307; Scherer v. Ingerman, 110 Ind. from the land if the personal assets 428, 11 N. E. 8, 12 N. E. 304; Mac- should prove insufficient." key V. Ballou, 112 Ind. 198, 13 N. "nVeakley v. Conradt, 56 Ind. 430; E. 715; O'Haleran v. O'Haleran, 115 Moncrief v. Moncrief, 73 Ind. 587; Ind. 493, 17 N. E. 917. Baker v. Griffitt, 83 Ind. 411; Miller *"Cook V. Cook, 92 Ind. 398; Fal- v. Buell, 92 Ind. 482; Scherer v. In- ley V. Gribling, 128 Ind. 110, 26 N. E. german, 110 Ind. 428, 11 N. E. 8, 12 794; Taylor v. Taylor, 8 B. Mon. N. E. 304. § 198 DISPOSITION OF REAL PROPERTY. 28 1 parties interested in the estate and who are injured by such sale.®- It is held in Piatt v. Brickley, 119 Ind. 333, that an heir who has sold and conveyed his interest in the land is not a necessary party to an application by the administrator to sell such land, and yet it would seem that where an heir has sold out all his interest in the land of the deceased ancestor, while not a necessar}^ party himself, yet the purchaser of his interest, standing in the shoes of such heir, ought to be made a party, so that he might set up any defense in his own behalf that would have been available to his grantor. § 198. May redeem land, may lease when. — An adminis- trator may, on behalf of the estate, redeem land belonging to the estate, and sold at sheriff's sale on a judgment prior to a mortgage held by his decedent against the same lands. ^^ And mortgaged real estate of a decedent, sold on a decree of foreclosure against the heirs of such decedent, may be redeemed by his adminis- trator, when necessar}', to make assets for the payment of the debts of the estate. And such redemption will be allowed, al- though the administrator was not a party to the foreclosure pro- ceedings. The administrator of a deceased mortgagee may join the heirs in a suit to redeem land from a senior mortgage.*'* An administrator, for the purpose of making assets to pay debts of the estate, may vacate and set aside a tax deed to his "Carter v. Lee, 51 Ind. 292. property so bid off is permitted to ■" Burns' R. S. 1908, § 814. "While go into the assets of the estate with- it is the duty of an administrator to out objection from any of the parties receive nothing in payment of a debt interested, and the purchase is tacitly coming to the estate but money, un- approved by the court's ordering the less otherwise ordered by the court, property sold as assets of the estate, yet if he should bid off property at and it is so sold, and the sale ap- a sheriff's sale under an execution proved by the court, such an irregu- upon a debt coming to the estate, the larity in the original sale would not sale would not be void. He might require it to be set aside or held for have been held liable to the heirs or naught in a collateral proceeding." creditors for the amount of his bid Mitchell v. Hodges, 87 Ind. 491 ; in money, or perhaps the sale might Whisnand v. Small, 65 Ind. 120. have been set aside by a direct pro- "Lilly v. Dunn, 96 Ind. 220. ceeding for that purpose. But if the 282 INDIANA PROBATE LAW. § I98 intestate's real estate, and he is not required to pay or tender the amount of the taxes due, but may ask to have the land sold sub- ject to any valid claim of the holder of the tax deed.*^^ iVn administrator cannot maintain an action to enforce a re- sulting trust, in favor of his intestate, in lands, unless it is shown that such lands when reco\'ered will be needed to pay the debts of such intestate.^* An administrator or executor, as such, has no authority to take possession of or lease the real estate of his decedent, if the heirs or devisees of such decedent are present at the time of his death.''' The statute in this state authorizes an executor or adminis- trator, under certain circumstances, to take possession of a de- cedent's real estate, and, where such possession has been taken, it will be presumed that it is a legal possession. Such statute reads as follows: "If there be no heirs or devisees of a testator or intestate present at the death of the decedent, to take posses- sion of the real estate left by any such testator or intestate, the executor or administrator of his personal estate may, as trustee for the proper heirs or devisees, take possession of such real estate, and demand and receive the rents and profits arising there- from, and sue for and recover the same, and do all other acts re- lating to such real estate which may be for the benefit of the per- sons entitled thereto and consistent with their rights and interest, until the settlement of such estate, and until the court make fur- ther order in the premises.*^ Such executor or administrator shall account to such court for any rents or profits or use of such prem- ises which he shall have received; and the same may be applied to the payment of the debts of the decedent after the personal property shall have been exhausted."®^ ^ Hannah v. Collins, 94 Ind. 201. it is needed for the payment of debts. *" Matlock V. Nave, 28 Ind. 35. Hochstedler v. Hochstedler, 108 Ind. ^' Comparet v. Randall, 4 Ind. 55 ; 506, 9 N. E. 467. Kidwell V. Kidwell, 84 Ind. 224. An "' Burns' R. S. 1908, § 2895 ; Butt executor or administrator can only v. Clark, 23 Ind. 548. take possession of the land to the ex- *" Burns' R. S. 1908, § 2896. elusion of the heir or devisee when 199 DISPOSITION OF REAL PROPERTY. 283 § 199. What real estate liable to sale.— The real estate ha- ble to be sold for the payment of debts, when the personal estate shall be insufficient therefor, shall include: First. All the real estate held or possessed by the deceased at the time of his death, by legal or equitable title, except such as was held upon a contract for the purchase of land, and all interest in real estate which would descend to his heirs. Second. All school or other lands, held on a certificate of purchase, of the general government, or of the state of Indiana. Third. All lands, and any interest therein, which the deceased, in his lifetime, may have transferred, with intent to defraud his creditors.^" But the lands thus fraud- ulently conveyed shall not be taken from any one who may have purchased them for a valuable consideration and without knowl- edge of the fraud, but such lands shall be liable to be sold only in ca^es in which they would have been liable to attachment and execution by a creditor of the deceased in his lifetime; and no proceeding by any executor or administrator to sell any lands so fraudulently conveyed shall be maintained unless the same shall be instituted within five years after the death of the testator or i'n1"P^t"l1"P If the executor or administrator shall be authorized to sell any lands thus fraudulently conveyed, he may, before sale, obtain possession by an action for the possession thereof, or may file a petition to avoid the fraudulent conveyance." ™ Burns' R S 1908, § 2849. Lands in lands of a decedent inherited by of a decedent sold by his heirs be- a second and childless wife, and fore final settlement of the estate are which at her death descends to the liable to be sold to pay debts. Weak- children of a former ^^\''^S^' ^J^^l ley V. Conradt, 56 Ind. 430; Mon- liable to be so d to pay the debts of crief V Moncrief, 73 Ind. 587; Baker the decedent. Wmdell v Tro ter, 127 V Griffitt, 83 Ind. 411; Scherer v. Ind. 332, 26 N. E. 823; Armstrong v. Ingerman 110 Ind. 428, 11 N. E. 8, Cavitt, 78 Ind. 476. Lands conveyed 12 N E 304. The real estate of a as a gift, and which may revert to member of the Ma-to-sin-ia band of the grantor on the death « the gran- Indians, derived by act of congress tee without issue, may be sold o pay of 1872, may be sold to pay his debts, the debts of the g-"tee. W^ngate except such as the act of congress v. James, 121 1"^ 69^ 22 N^ E. 735. provides shall not be enforced against Burns R. S. 1908, ^ ^U. such land. Taylor v. Vandegrift, 126 '= Burns' R. S. 1908, § 2851. Ind. 325, 25 N. E. 548. The interest 284 INDIANA PROBATE LAW. § 199 Any estate or interest in land, which at the death of the owner descends to his heirs, unless expressly or by necessary implication otherwise provided by statute, is liable to sale for the payment of the owner's debts. All the property, both real and personal, the legal or equitable title to which is in a man at the time of his death, becomes liable in the hands of his executor or administrator for the debts of such decedent. The power of the executor or administrator over the real estate, with few exceptions, is limited to the one purpose of making assets for the payment of the debts of the estate. For this purpose he may sell such real estate, and the statute specifies very clearly what may be sold. From the reading of this statute it is apparent that it is broad enough to cover any vested interest a deceased person may have in land at the time of his death. "^ The equity of redemption the deceased debtor may have in lands under mortgage is subject to sale whether such mortgage has been foreclosed or not.'^* As the right of the administrator to sell lands of his decedent rests upon the need he has to make assets for the payment of debts, his power to sell is limited to so much only of the land as is necessary for that purpose.'^ The general rule is that any interest in land, whether legal or equitable, in possession or reversion, including inchoate equities, is liable for the debts of the owner, and after his death may be sold if necessary to make assets for the payment of his debts.^® Where a devise is made to one and the will provides that the lands included in such devise shall be charged with the payment of all the claims against the estate of the testator, the other real estate devised to other devisees is not thereby released from lia- bility for sale in the event the land charged with the debts proves not sufficient for their payment.^^ "Windell V. Trotter, 127 Ind. 332, "Newcomer v. Wallace, 30 Ind. 26 N. E. 823; Wingate v. James, 121 216: Brown v. Rose, 6 Blackf. Ind. 69, 22 N. E. 735. (Ind.) 69. '*Kenley v. Bryan, 110 111. 652; "Woerner Am. Law Admin., Diehl's Appeal, 33 Pa. St. 406; Biggs § 471. V. Bickel, 12 Ohio St. 49; Boiling v. "Duncan v. Gainey, 108 Ind. 579. Jones, 67 Ala. 508. 200 DISPOSITION OF REAL PROPERTY. 285 Where real estate is held by husband and wife as joint tenants by entireties, at the death of the husband the title to the whole estate vests in his wife. He has no estate in such land as will descend to his heirs, nor be made liable to sale by his executor or administrator for the payment of his debts." § 200. Property fraudulently conveyed by decedent. — Any transfer of property in fraud of the rights of creditors is void as to them, though valid and binding as to the parties to such con- veyance. If the administrator or executor represented only the decedent he would have no right to impeach any conveyance of his decedent for fraud, but as he is also the representative of the creditors and in a sense a trustee for them, he would, even in the absence of any statute, perhaps have the right to assail a fraudu- lent conveyance made by the decedent in his lifetime. But he would never be allowed to recover the property for the benefit of the heir or devisee. In an action by the executor or administrator of a decedent to set aside a fraudulent conveyance of property, either real or per- sonal, it is necessary for him to show that he needs such property to pay the debts of the estate. Such recovery is only allowed for this purpose. He cannot recover such property for the heirs.'^ While the statute gives authority to an administrator to bring a separate action to set aside a fraudulent conveyance, yet econ- omy would dictate that he should settle such question in his " Simpson v. Pearson, 31 Ind. 1, tion there was no other property of 99 Am. Dec. 577. the decedent with which to pay his ■' Hess V. Hess, 19 Ind. 238 ; Mat- debts. Such action must be com- lock V. Nave, 28 Ind. 35; Garner v. menced within five years after the Graves, 54 Ind. 188. An adminis- death of the decedent. Cox v. Hun- trator may have a fraudulent con- ter, 79 Ind. 590 ; Cook v. Chambers, veyance set aside before applying for 107 Ind. 67, 8 X. E. 10. If a person an order to sell the same when he purchases lands with his own means shows that he will be entitled to such and causes the same to be conveyed order on the conveyance being set aside, to another for the purpose of de- Love v. Mikals, 11 Ind. 227. The com- frauding his creditors, such lands plaint to set aside a fraudulent convey- may be subjected to the payment of ance must allege that at the time of his debts after his death. Bushnell the conveyance and death of the de- v. Bushnell. 88 Ind. 403. cedent and commencement of the ac- 286 INDIANA PROBATE LAW. § 200 application to sell the land for the payment of debts, and not to incur the unnecessary exj^ense of prosecuting two suits to the same purpose.^" As a rule, a man has the right to sell, transfer or give away his property in any manner he deems fit. But where such sale, gift or transfer, either of real or personal property, is made with in- tent to defraud his creditors, and the person to whom such sale, gift or transfer is made has knowledge of such fraudulent intent, the transfer to such person will be void, although he may have paid an adequate consideration for the property so transferred. And after the death of the grantor such transfer may be set aside upon the application of his executor or administrator for the pur- pose of subjecting such property to sale for the payment of the debts of such grantor." The question of fraudulent intent is one of fact and not of legal inference or presumption. And a con- veyance is not fraudulent as to creditors simply because it is not '"Galentine v. Wood, 137 Ind. 532, 35 N. E. 901. "The complaint before us is against all the parties and con- tains all the necessary allegations to entitle the appellee to sell the land therein described to make assets for the payment of the debts due from the estate represented by him. In- deed, we have no doubt that the complaint proceeds upon the theory that the appellee was entitled to an order in this action for the sale of the land therein described, and that the setting aside of the fraudulent conveyances referred to was a mere incident. Such a theory is not only outlined in the complaint, but we further find that the heirs of the decedent are made parties to the pro- ceedings, which would not have been necessary if the only purpose of the suit was to set aside a fraudulent conveyance. Furthermore, the action is prosecuted in the circuit court granting the letters of administra- tion, while the land described in the complaint is situate in another coun- ty. Nor do we think any valid ob- jection can be urged against the practice here adopted." "'Love V. Mikals, 11 Ind. 227; Martin v. Bolton, 75 Ind. 295; Wright V. Brandis, 1 Ind. 336; Rog- ers V. Evans, 3 Ind. 574, 56 Am. Dec. 537; Lipperd v. Edwards, 39 Ind. 165. An administrator de bonis non, who has obtained a judgment against his insolvent predecessor and his sureties for the conversion by the former of the assets of the es- tate, may, without proceeding to col- lect such judgment from the sure- tics, and without alleging that there arc unpaid claims against the estate, maintain an action to set aside a con- veyance, which the defaulting admin- istrator had fraudulently made to his children, of land purchased by him with the trust funds, and to subject such land to the satisfaction of the judgment lien. Duffy v. State, ex rel., 115 Ind. 351, 17 N. E. 615. 201 DISPOSITION OF REAL PROPERTY. 28/ founded upon a valuable consideration; something more than this must be shown to vacate such deed or conveyance. The party seeking to set aside such conveyance must allege and prove such other facts and circumstances in addition to the want of a valu- able consideration to make out his case. It is necessary to charge in the complaint and prove on the trial that, at the time the con- veyance was made, the debtor did not have enough other property left, subject to execution, to pay all his debts. ^^ In the case of Sherman v. Hogland, 54 Ind. 578, the Supreme Court says : "We do not think it sufficient to charge that, some months or years after the conveyance was executed, no other property could be found on which to levy an execution, or that, at some subsequent time, it was ascertained that the debtor had become wholly insolvent. To constitute the conveyance a fraud- ulent one it must be made so by the facts and circumstances con- nected with it, as they existed at the time of its execution, and not by any subsequent misconduct or misfortune of the grantor. No matter how bad the intention of a debtor may, in point of fact, have been in making a voluntary conveyance, still if he had sufficient other property remaining, subject to execution, to pay all his debts, his creditors, in legal contemplation, are not injured by this bad intention simply and have no right of action to set aside such conveyance. It is only when an inadequate amount of property remains that creditors have the legal right to complain." The court, upon sustaining objections to the settlement of an estate as insolvent, denied the petition of the administrator and upon a showing by the objectors the court ordered the adminis- trator to bring a proceeding to avoid fraudulent conveyances made by the intestate during life.*^ § 201. Same— Suit by creditor.— The creditor of a dece- dent may maintain an action to set aside a fraudulent conveyance made by such decedent in his lifetime, and to subject lands so "Pence v. Croan, 51 Ind. 2,?>6; Brubaker, 150 Ind. 260, 49 N. K Sherman v. Hogland, 54 Ind. 578; 1050. State V. Parsons, 147 Ind. 579, 47 N. « Cray v. Wright, 16 Ind. App, E. 17, 62 Am. St. 430; Jarrell v. 258, 44 X. E. 1009. 288 INDIANA PROBATE LAW. § 20I conveyed to the payment of the debts of such decedent. It is true the statute does not authorize such an action by a creditor, but it has been decided the right exists independent of the statute, and that the remedy given by the statute to an executor or admin- istrator is simply cumulative.®'* The action may be maintained by a single creditor, and if he is successful the fruits of such action inure to the benefit of all the creditors of the estate. The purpose of such action is simply to vacate the sale, so that the land may become assets for the payment of the debts of the dece- dent. After such fraudulent conveyance is so set aside, the estate is settled by the executor or administrator in the usual way.®^ The title to lands fraudulently conveyed is in the purchaser, and not in the heirs of the vendor; and such lands, as between the purchaser and such vendor or his heirs, belong to the purchaser. He holds them subject to the claims of the vendor's creditors, and they may be sold to satisfy such claims; but, if sold, and the pro- ceeds of the sale exceed the amount of the debt, the excess be- longs to the purchaser, and not to the heirs of the vendor.®" '* Bottorff V. Covert, 90 Ind. 508; and where, in such action, it appears Tyler v. Wilkerson, 20 Ind. 473. A from the complaint that, more than single creditor, as well as an admin- three years prior to the commence- istrator or an executor, may main- ment of such action, the debtor's es- tain an action to set aside a sale of tate had been finally settled, in due lands fraudulently made by a deceased course of administration, and that debtor. A creditor of a decedent may such settlement remains unrevoked, maintain an action to have a fraud- the action cannot be maintained, and ulent conveyance of the decedent set the complaint is insufficient. Even aside, when the lands may be sold to if such settlement had been made pay debts. BottorfF v. Covert, 90 within less than three years prior to Ind. 508. An action to set aside a the commencement of such action, as conveyance as fraudulent will not lie long as it remains unrevoked such after a final settlement so long as action will not lie. Vestal v. Allen, such settlement remains in force. 94 Ind. 268. Vestal v. Allen, 94 Ind. 268. '" Bottorff v. Covert, 90 Ind. 508. ^Bottorff v. Covert, 90 Ind. 508; While a creditor may, during the Wilson v. Davis, 37 Ind. 141. In an life of his debtor, in one action, re- action by a judgment creditor against cover judgment for the debt, and, the heirs of a deceased insolvent without regard to the claims of oth- debtor, to set aside an alleged fraud- er creditors, may have that judg- iilent conveyance by the debtor to ment enforced by the sale of prop- said heirs, the debtor's administrator erty fraudulently conveyed by the is a necessar}^ party to the action; debtor, yet when the debtor has died. § 202 DISPOSITION OF REAL PROPERTY. 289 In an action brought by creditors to set aside a fraudulent con- veyance made by a deceased debtor in his Hfetime the heirs of such decedent are necessary parties.^' § 202. Same — When suit must be brought. — Where one purchases real estate with his own means, and to defraud his creditors causes the conveyance to be made to another, it is a fraudulent transfer within the meaning of this statute. And the executor or administrator of such purchaser may maintain an ac- tion to sell the lands so fraudulently transferred by his decedent in his lifetime; but he cannot maintain such proceeding unless the action is instituted within five years after the death of the testator or intestate. The right of such executor or administrator to maintain such action is purely statutory; and the statute requires that this right shall be exercised within five years after the death of the decedent. After the lapse of five years no such right exists, so far as such executor or administrator is concerned.*^ Where a statute of limitation merely bars a remedy which exists independent of the statute, it must, as a rule, be pleaded; but where a right, which is not of common law origin, is given by a statute which prescribes the time within which proceedings to enforce such right must be commenced, it should appear by an averment in the complaint to enforce such right that the time limited had not expired, otherwise such complaint would not withstand a demurrer thereto for the want of sufficient facts. ^® and no administrator of his estate Hays v. Montgomery, 118 Ind. 91, 20 has been appointed, such relief can- N. E. 646. not be had by a suit of the creditor ^ Leard v. Leard, 30 Ind. 171; against the fraudulent grantee. Carr Cook v. Chambers, 107 Ind. 67, 8 N. V. Huette, 1Z Ind. 378; Voorhees v. E. 10; Bruker v. Kelsey, 72 Ind. 51; Carpenter, 127 Ind. 300, 26 N. E. 838. Baugh v. Boles, 35 Ind. 524. A single creditor may maintain the ^ Cox v. Hunter, 79 Ind. 590 ; action, and after the sale is set aside Bushnell v. Bushnell, 88 Ind. 403 ; the land becomes assets in the hands Cook v. Chambers, 107 Ind. 67, 8 N. of the administrator or executor, E. 10. An action by an executor or who thereafter settles the estate in administrator to sell lands fraudu- the usual way. Willis v. Thompson, lently conveyed by his testator or in- 93 Ind. 62 ; Vestal v. Allen, 94 Ind. testate in his lifetime must be com- 268. menced within five years after the ''Caress v. Foster, 62 Ind. 145; death of the decedent. Cox v. Hun- 19— Pro. Law. 290 INDIANA PROBATE LAW. § 20$ An executor or administrator may maintain proceedings to set aside a fraudulent conveyance of property, made by his decedent in his lifetime, before procuring an order to sell the same. It can make no material difference whether the order for sale does or does not precede the suit to set aside the conveyance, if the execu- tor or administrator, in his complaint for that purpose, shows that upon a decree setting it aside he will be entitled to the order to sell, and this he may do by the proper averments in his complaint as to the insufficiency of the personal property to pay the liabilities of the estate.^" As he can only have the deed avoided prelim- inary to the institution of a proceeding to sell, in order to make assets to pay debts, it is manifest if the preliminar}^ step is de- layed until after the right to institute a proceeding to sue is barred by the statute of limitations, the right to maintain proceedings to avoid the deed is also barred. °^ A party to a voidable sale of land by an administrator is also barred by the five years' statute of limitations.''- If the complaint to set aside a fraudulent conveyance shows on its face that the decedent has been dead for five years, the com- plaint should be held bad on demurrer."^ As soon as the administrator is satisfied of the fact that there is a deficiency of assets it is his duty to bring an action to recover property fraudulently conveyed even before the exact amount of such deficiency is ascertained.^* § 203. Who may apply to sell land, and when. — An appli- cation to sell real estate of a decedent to make assets for the pay- ment of his debts can only be made by his executor or adminis- trator, and a sale, when ordered, can only be made by such officer. But if the executor or administrator neglects or refuses to file such application he may be compelled to act upon the petition of ter, 79 Ind. 590; Bushnell v. Bush- ''" Palmerton v. Hoop, 131 Ind. 23, nell, 88 Ind. 403; Cook v. Chambers, 30 X. E. 874. 107 Ind. 67, 8 N. E. 10. ''Cook v. Chambers, 107 Ind. 67, ^Love V.' Mikals, 11 Ind. 227; Ty- 8 N. E. 10. ler V. Wilkerson, 27 Ind. 450. ''* Andrew v. Hinderman, 71 Wis. " Cook V. Chambers, 107 Ind. 67, 8 148, 36 N. W. 624. N. E. 10. § 203 DISPOSITION OF REAL PROPERTY. 29 1 any creditor of the estate whose claim has been filed and al- lowed.^^ The statute provides that whenever an executor or adminis- trator shall discover that the personal estate of a decedent is in- sufficient to satisfy the liabilities thereof, he shall, without delay, file his petition in the circuit court issuing his letters, for the sale of the real estate of the deceased, to make assets for the payment of such liabilities.®^ It is not necessary that there should be judgments or allow- ances against the estate, to justify an application on the part of an executor or administrator to sell the real estate of his dece- dent ; it is sufficient to show that the personal property is not suffi- cient to pay the indebtedness of the estate.®' The fact that the personal assets belonging to the estate, suffi- cient to pay all the debts of such estate, came into possession of the first administrator, and were by him wasted, and he and his sureties afterward became insolvent, is no defense for the heirs against the petition of an administrator de bonis non to sell real estate of the decedent to pay the debts of the estate; such loss falls upon the heirs and not upon the estate.®^ An answer by one interested to a petition of an executor or administrator to sell real estate to pay debts, that there is sufficient personal property to pay all the just debts against the estate, is good.®® Before this statute took its present form, exclusive jurisdiction ** Burns' R. S. 1908, § 2859. Ind. 442, 65 Am. Dec. 740; Cole v. "' Burns' R. S. 1908, § 2852, Dit- Lafontaine, 84 Ind. 446; Scherer v. ton V. Hart, — Ind. — 95 N. E. 119. Ingerman, 110 Ind. 428, 11 N. E. 8, "'Love V. Mikals, 11 Ind. 227; Ty- 12 N. E. 304; O'Haleran v. O'Hal- ler V. Wilkerson, 27 Ind. 450; Garner eran, 115 Ind. 493, 17 N. E. 917. The V. Graves, 54 Ind. 188; Carr v. court of common pleas had jurisdic- Huette, IZ Ind. 378; Martin v. Bol- tion to try and determine the ques- ton, 75 Ind. 295. The real estate of tion of title to land sought to be sold a decedent cannot be sold to pay by an administrator to pay debts, debts unless the personal estate is Lantz v. Maffett, 102 Ind. 23, 26 N. insufficient. Newcomer v. Wallace, E. 195; Langsdale v. Woolen, 120 30 Ind. 216; Edwards v. Haverstick, Ind. 78, 21 N. E. 541. 47 Ind. 138. In such proceedings the "« Nettleton v. Dixon, 2 Ind. 446. heirs, etc., may show that there are ^ Hunter v. French, 86 Ind. 320. no debts to pay. Riser v. Snoddy, 7 292 INDIANA PROBATE LAW. § 203 in proceedings to sell real estate was held to be in the court grant- ing the letters.^ Later this case was overruled, the court holding that jurisdiction was either in the county where letters were granted, or in the county where the land to be sold was situated. ■ But under this section of the statute, it is now clear that the cir- cuit court, which issues the letters testamentary or letters of ad- ministration upon the estates of decedents, has exclusive original jurisdiction of a petition for the sale of his decedent's real estate, in whatever county the same may be situate, for the payment of the liabilities of such decedent's estate.^ Exclusive jurisdiction is conferred upon the court to order the sale of a decedent's real estate, and the power to make the order carries with it the right to determine the title to such real estate. "* A foreign executor or administrator may procure an order for that purpose and make a sale of his decedent's lands in this state, in the same manner and upon the same terms as one appointed in the state, and if the bond he has given in the state where his ap- pointment is made is deemed by the court of this state sufficient, such executor or administrator shall not be required to file any additional bond here.^ A sale of land under an order procured by a foreign executor cannot be attacked collaterally on the ground that such executor ^Ex parte Shockley, 14 Ind. 413. 'Burns' R. S. 1908, §§ 2881, 2884, = Williamson v. Miles, 25 Ind. 55; ante, §§ 28, 29; Rapp v. Matthias, Jones V. Levi, 72 Ind. 586. 35 Ind. 332; Stafford v. Davidson, 47 *Vail V. Rinehart, 105 Ind. 6, 4 N. Ind. 319. A foreign executor can E. 218. only sell and convey lands in this ^Wolcott v. Wigton, 7 Ind. 44; state by complying with the laws of Fleming v. Potter, 14 Ind. 486; this state. Lucas v. Tucker, 17 Ind. Simpson v. Pearson, 31 Ind. 1, 99 41. A foreign executor or adminis- Am. Dec. 577. And when the court trator may procure a sale of lands has jurisdiction over the subject- in the same manner and upon the matter and the parties interested, a same terms as one appointed in this judgment ordering a sale of the state; and if he show his bond given land cannot be collaterally attacked, to be already sufficient, need file no Armstrong v. Cavitt, 78 Ind. 476; other. Rapp v. Matthias, 35 Ind. Pepper v. Zahnsinger, 94 Ind. 88; 332. Meikel v. Borders, 129 Ind. 529, 29 N. E. 29. § 203 DISPOSITION OF REAL PROPERTY. 293 did not comply with the statute regulating the filing and record- ing of copies of foreign wills.** An executor's or administrator's right to institute proceedings to sell real estate of his decedent for the payment of his debts is barred by the statute of limitations aftei* the expiration of fifteen years from the time the cause of action accrues, and such pro- ceeding is so far a civil action that a party may have a change of venue from the judge upon a proper application.'^ The statute does not, however, begin to run until the executor or administrator discovers the insufficiency of the personal estate and that it will be necessary to sell land to pay debts.* Where, in a proper case, an executor or administrator attempts to make assets for the payment of legacies by the sale of the de- cedent's real estate, he must begin proceedings therefor within fifteen years." If debts have been established against the estate, and the per- sonal assets in the hands of the executor or administrator are in- sufficient for their payment, such representative should promptly "Bailey v. Rinker, 146 Ind. 129, 45 State v. Younts, 89 Ind. 313; Hogan X. E. 38. V. Robinson, 94 Ind. 138. 'Scherer v. Ingerman, 110 Ind. *Witz v. Dale, 129 Ind. 120, Zl N. 428, 11 X. E. 8, 12 X. E. 304. The E. 498. As is said in this case: statute of limitations is a good de- "There must certainly be some limit fense to a petition to sell lands. Cole to the time within which a legacy V. Lafontaine, 84 Ind. 446. can be enforced, where, as is true ^Falley v. Gribling, 128 Ind. 110, here, no trust exists, and that limit 26 X. E. 794. In this case it is said: is fixed by the statute to which we "The statute of limitations must be have referred, inasmuch as it is com- pleaded and is not available on de- prehensive in its terms, and embraces murrer, unless it affirmatively ap- all cases for which no specific pro- pears that the case is not within any vision is made. Repose is the object of the exceptions to the statute; and of our entire system of limitation, a demurrer raises no question under and to prevent a break in the system, the statute of limitations, where the by providing for all cases not other- pleading demurred to does not show wise provided for, was the manifest affirmatively that the case is not purpose of the legislature in enacting within any of the exceptions to the the general statute. So all our deci- statute," citing Devor v. Rerick, 87 sions indicate, and this the repose of Ind. ZZl \ Thompson v. Parker, 83 society as well as the security of Ind. 96: Wilson v. Ensworth, 85 Ind. titles, demands." 399; Lucas v. Labertue, 88 Ind. 277; 294 INDIANA PROBATE LAW. 8 2O4 apply for the sale of the real estate, and if he neglects to do so he should be compelled to do so by some creditor, the heirs, or even by the court of its own motion. § 204. Requisites of petition — The statute. — Such petition shall be entitled with the names of the parties, petitioner and de- fendants, and the court in which pending. If the deceased died intestate, his widow, if any, and his other heirs, shall be made defendants; if he died testate, his widow, if any, and his devisees, shall be made defendants; provided, that if he died intestate as to any portion of his real estate, his heirs shall also be made de- fendants. The holder of every lien on the real estate which the executor or administrator shall have reason to deem invalid or discharged, in whole or in part (except taxes and judgments and mortgages in favor of the state of Indiana), shall be made de- fendants to every such petition, and may be proceeded against by the name or style by which he or they may be designated in the record or instrument constituting such lien. Any person claiming an interest in or a lien upon any of the real estate may also be made a defendant. If the names of any of the heirs or devisees of the deceased be unknown to the petitioner, such fact shall be stated in the petition ; and they may be proceeded against as the unknown heirs and devisees of the deceased. The petition shall set forth a description of the real estate of the deceased liable to be made assets for the payment of his debts; the title of the de- cedent therein at his death, and the probable value thereof exclu- sive of liens; the amount of the personal estate of the decedent which has come to the possession or knowledge of the executor or administrator; the amount of the claims filed and allowed against the estate; the amount of claims filed and pending against the estate; the particulars of each lien, whether general or special, including taxes accrued at the death of the decedent, and judg- ments and mortgages, due and owing to the state, upon all or any of the decedent's real estate, appearing and remaining unsatisfied of record; with the amount and date of liens and names of the holders, as the same appear of record. If the decedent shall have died testate, and his will shall contain any provision for the dis- § 205 DISPOSITION OF REAL PROPERTY. 295 position of his estate for the payment of debts dififerent from the manner which the law prescribes in case of intestacy, such pro- vision shall be set forth in the petition. Such petition shall be verified by the oath of the executor or administrator filing the same.^*^ § 205. Who should be made parties. — The statute declares who are necessary parties to the petition of an administrator or executor to sell lands of his decedent, and who are proper par- ties. It is necessary to make the heirs parties to a petition by the executor or administrator to sell the ancestor's land to pay debts, for in no other way can their title to such land be divested ;" and such heirs should be named individually in the petition, if their names be known. Merely referring to them in a general way as "heirs" of the deceased is not sulftcient. There is no such thing as an adversary proceeding in court against a party without naming him, unless it be in some special case where the statute authorizes a proceeding against unknown heirs.'' But an heir who has conveyed his interest in a decedent's real estate is not a necessary party to an application to sell real estate.'^ In the event the executor or administrator does not seek to sell the land of his decedent free from liens, then only such lien- holders whose liens he may have reason to believe are invalid or have been discharged in whole or in part may and should be made '^ Burns' R. S. 1908, § 2854 ; Hamp- seized, as heir, and not by virtue of ton V. Murphy, 45 Ind. App. 513, 86 her marital rights. She is a proper N E 436, 88 N. E. 876; Maris v. party to a petition to sell real estate Wolfe 46 ind. App. 416. for the payment of the decedent's "Wood V Wood, 150 Ind. 600, 50 debts. Smock v. Reichwine, 117 Ind. N. E. 573; Sherry v. Denn, 8 Blackf. 194, 19 N. E. 116. "The administrator (Ind.) 542. Where persons are made cannot intervene in an action for parties to a proceeding as heirs of partition between heirs, and secure one person the judgment of sale will an order to sell the land for the pay- not bar their rights as heirs of an- ment of debts. Douthitt v. Smith, 69 other person. Elliott v. Frakes, 71 Ind. 463. Ind 412; see Bumb v. Card, 107 Ind. ^^ Guy v. Pierson, 21 Ind. 18. 575, 8 N. E. 713. The widow takes the ^^ Piatt v. Brickley, 119 Ind. 333, 21 interest that the law gives her in the N. E. 906. real estate of which her husband dies 296 INDIANA PROBATE LAW. § 206 parties to the proceeding. Holders of valid liens, or the persons claiming an interest in, or a lien upon, the lands, may at the in- stance of the executor or administrator, or upon their own appli- cation, be made parties to the proceedings. They are, however, not necessary parties in order to give the court jurisdiction to order the sale of the land and to pass the title of the decedent to the purchaser at the sale made upon such order. ^^ The statute makes it the duty of an executor or administrator, before filing such petition, to carefully examine the offices of the clerk, auditor, treasurer, and recorder in each county in which real estate of the deceased may be situate, and ascertain the exact character and extent of each lien thereon created or suffered by the deceased in his lifetime, and remaining unsatisfied of record. ^^ Any person not a party to such petition may, upon proper peti- tion, be admitted as a party to the proceedings, and set up any interest in or lien upon the land, and have the same heard and determined. ^^ And a lienholder who has been made a party to such petition and who is properly ser^-ed with process, who ap- pears and pleads to such petition, but fails to set up or assert any claim to or lien upon such land, is estopped by a judgment on such petition ordering the sale of such land to afterwards enforce such lien, though the land is sold under such order without pro- viding in any manner for the payment of such lien.^' § 206. What issues petition tenders. — In this state the real and personal estate of a decedent are equally chargeable with the payment of his debts, but the real estate only becomes assets when the personal estate has been exhausted or is shown to be insufficient for the payment of debts. ^^ The issue tendered the heirs by the petition is the allegation of indebtedness and the right of the executor or administrator to sell the land. The latter depends upon the ownership of the de- cedent in and to such land, and of necessity involves the question " Wood V. Wood, 150 Ind. 600, 50 '-' Vail v. Rinehart, 105 Ind. 6, 4 N. N. E. 573. E. 218; Kaufman v. Elder, 154 Ind. ^Burns' R. S. 1908, § 2853. 157, 56 N. E. 215; Crum v. Meeks, " Burns' R. S. 1908, § 2860. 128 Ind. 360, 27 X. E. 722. ^ Moore v. Moore, 155 Ind. 261, 57 § 206 DISPOSITION OF REAL PROPERTY. 29/ of his title to the land. If the petition alleges that he died the owner in fee of the land, when in fact he did not, and this allega- tion is not, at the time of the hearing upon such petition, contro- verted by the heirs, and the court finds, although erroneously, in favor of the administrator, and orders the sale of the land, such order, so long as it stands, will conclude the heirs from setting up title to the land, and it is not subject to a collateral attack. It has all the binding force and effect of a judgment until set aside in a direct proceeding brought for that purpose." The statute requires that the executor or administrator shall allege in the petition to sell what title the decedent had in the land at the time of his death. It requires the court to inquire into the truth of the facts set forth in the petition : and for that purpose the executor or administrator may be examined under oath, wit- nesses compelled to attend and testify, and depositions taken touching the same under the usual regulations of law. The statute contemplates a trial of all the facts alleged in tlie petition ; that the statements may be denied or confessed and avoided : that issues of law and fact may be formed and tried. And whether the allegations are denied or not the court ought to be satisfied that the facts set forth in the petition are true before it grants the order of sale.-° AMiere an heir, having full knowledge that all the estate in the land has been sold on the petition of an administrator, receives X. E. 242: Fiscus v. Moore, 121 Ind. 224. The petition must name the 547. 23 X. E. 362, 7 L. R. A. 235. heirs if known, otherwise no pre- ^*Lantz V. Maffett, 102 Ind. 23, 26 sumption of jurisdiction arises. Guy X. E. 195; Bumb v. Card, 107 Ind. v. Pierson, 21 Ind. 18. The petition 575, S X. E. 713. A change from must set forth facts which show a the judge is permitted in such pro- necessity for a sale. Renner v. Ross, ceedings. Scherer v. Ingerman, 110 111 Ind. 269, 12 X. E. 508. An ad- Ind. 428. 11 X. E. 8, 12 X. E. 304. ministrator is not entitled to an or- Proof of the decedent's title is nee- der for the sale of an amount of real essar\- where it is questioned. Jack- estate in excess of what is necessarj- son V. Weaver, 98 Ind. 307; Bennett to pay the debts of the decedent. V. Gaddis, 79 Ind. 347. Fralich v. Moore, 123 Ind. 75, 24 ^ Gavin v. Graydon, 41 Ind. 559; X'. E. 232. Under our statute the Riser v. Snoddy. 7 Ind. 442, 65 Am. land of a decedent is subject to be Dec. 740; Martin v. Starr, 7 Ind. 298 INDIANA PROBATE LAW. § 206 and retains the purchase-money remaining after the payment of the debts of the estate, he cannot avoid the sale. He cannot have both the money and the land.-^ Such petition must be verified. This verification may be waived, and where the defendants appear and contest the pro- ceedings, such waiver will be presumed."" An executor or administrator who petitions the court for an order to sell lands to pay his decedent's debts is only required to make out a prima facie case, and while a judgment on a claim against the estate of such decedent is conclusive as to the personal property of the decedent, it is only prima facie as to the real estate and does not affect the heirs or devisees." The description of lands in the petition of an executor or ad- ministrator for the sale of real estate should be reasonably certain and should name the county and state in which such lands are situated,"* for the reason that where a misdescription of the lands in the petition is carried into the order of sale, the deed can- not afterward be reformed and such mistake corrected."^ sold by an executor or administrator "^Jackson v. Weaver, 98 Ind. 307; to make assets with which to pay the Cole v. Lafontaine, 84 Ind. 446; expenses of administration. Falley Scherer v. Ingerman, 110 Ind. 428, V. Gribling, 128 Ind. 110, 26 N. E. 11 N. E. 8, 12 N. E. 304. 794. '*Weed v. Edmonds, 4 Ind. 468. "■' Bumb V. Card, 107 Ind. 575, 8 N. "■' Walton v. Cox, 67 Ind. 164 ; An- E. 713. Where lands are sold under gle v. Speer, 66 Ind. 488. In Rogers the court's order and the proceedings v. Abbott, 37 Ind. 138, it is said: "If on their face appear valid the heirs, the mistake was in the deed only, in an action to recover the land from perhaps it might be corrected in this an innocent purchaser, cannot con- way. But if we should correct the tradict the record. Worthington v. deed and attempt to vest in the plain- Dunkin. 41 Ind. 515. Where an heir, tiflf the title to the tract of land having full knowledge that the whole which he claims, we should give him estate in the land has been sold on land which was not ordered by the petition of the administrator, re- court to be sold, nor advertised by ceives and retains the purchase- the sheriff, nor sold by him, nor pur- money remaining after the payment chased by the plaintiff." "The diffi- of debts, he cannot avoid the sale, culty arises out of the facts that the Elliott v. Frakes, 71 Ind. 412, distin- judgment directing the sale * * * •guished; Palmerton v. Hoop, 131 and the advertisement, appraisement Ind. 23. 30 N. E. 874. * * * and the sale and convey- "Weed V. Edmonds, 4 Ind. 468. ance thereof, * * * each desig- § 20/ OISPOSITION OF REAL PROPERTY. 299 The statute prescribes specially how lands of a decedent may be sold by his executors or administrators for the payment of his debts. There is no other mode and there is no other authority under which executors or administrators can come into any other suit and by cross-complaint secure from the court an order to sell lands.-** The petition of an executor or administrator for an order to sell real estate of his decedent to pay his debts need not contain a particular description of such debts, a statement of their aggre- gate being sufficient.-^ And upon such petition the court should not order the sale of more land than is necessary for the pay- ment of such debts, unless the land remaining unsold would be greatly injured thereby.-^ Where any portion of the land has been sold and converted into assets by such executor or adminis- trator under an order of court, no other land of the estate can be ordered sold until such assets have been exhausted.-^ An application by one acting as administrator, but who has not been legally qualified, should not be entertained. The court can take no jurisdiction in such case, and if it should and an order of sale is made on such application and the property sold, such sale would be void.^*' § 207. The proceeding sui generis. — An application by an executor or administrator to sell lands in due course of adminis- nated and described another piece or stated only generally in the petition, tract of land than that intended, and Jackson v. Weaver, 98 Ind. 307. of which possession was taken." " Collins v. Farnsworth, 8 Blackf. Miller v. Kolb, 47 Ind. 220; First (Ind.) 575. Such application is not Nat. Bank &c. v. Gough, 61 Ind. a civil action. Seward v. Clark, Q 147; Taylor v. Fleet, 4 Barb. (N. Ind. 289. See Scherer v. Ingerman, Y.) 95. 110 Ind. 428, 11 N. E. 8, 12 N. E. =" Clayton v. Blough, 93 Ind. 85. 304. A sale is permitted only in case of "* Black v. IMeek, 1 Ind. 180 ; Fra- its necessity, and the administrator lich v. Aloore, 123 Ind. 75, 24 N. E. in his petition must state such facts 232. as show clearly that such necessity ^ Brown v. Rose, 6 Blackf. (Ind.) exists. Renner v. Ross, 111 Ind. 69. 269, 12 X. E. 508 ; First Nat. Bank '» Pryor v. Downey, 50 Cal. 388, 19 V. Hanna, 12 Ind. App. 240, 39 N. E. Am. Rep. 656: Whitesides v. Barber, 1054. The decedent's title need be 24 S. Car. Zll. 300 INDIANA PROBATE LAW. § 20/ tration stands upon the footing of an ordinary adversary judicial proceeding in a court of superior jurisdiction. And where juris- diction has been acquired in such a proceeding, subsequent errors, however grave and glaring, would not subject the judgment to a successful collateral attack. ^^ Such application, whether made by the executors, administrators or creditors of a decedent, is not a civil action. The proceedings are strictly sui generis; and in every step in the progress thereof until the final determination, they must be governed and controlled by the statutory provisions which are expressly applicable thereto.^" The sale of a dece- dent's real estate by his executor or administrator is provided for and regulated exclusively by the act for the settlement of dece- dents' estates. The civil code makes no provision for such pro- ceedings, and they are not within the ordinary common-law juris- diction of the circuit court. ^^ But while this is true, it will be noticed that in many regards the act for the settlement of decedents' estates does not provide a complete code of procedure, and where a complete mode of pro- cedure is not provided heed must be had to the civil code. A proceeding to sell real estate to pay debts is but an incident to the settlement of the estate. No independent action can be main- tained for that purpose, and though some of the rules of the civil code as to pleading and practice must often be applied, yet such a proceeding is not a civil action. But the reasoning of the Supreme Court in a recent case goes far toward establishing the fact that proceedings by adminis- trators and executors to sell real estate of their decedents to pay debts are civil actions. Before the opinion in this case was handed down, it had been held that as the act for the settlement of decedents' estates does not provide for a change of venue from the judge that the civil code may be looked to, and that proceed- ings to sell lands to pay debts are so far civil proceedings as to ^'^Spaulding v. Baldwin, 31 Ind. =' Rinehart v. Vail, 103 Ind. 159, 2 376; Williams v. Sharp, 2 Ind. 101; N. E. 330; Tippecanoe Loan &c. Co. Gavin v. Graydon, 41 Ind. 559; De- v. Carr, 40 Ind. App. 125, 78 N. E. quindre v. Williams, 31 Ind. 444. 1043. '' Seward v. Clark, 67 Ind. 289. 207 DISPOSITION OF REAL PROPERTY. 301 justify a change of judge upon a proper application.^* But the appellate court had decided that no change of venue from the county was permissible in such a proceeding/ ° Yet the Supreme Court, in the same case, upon the same facts, says : "Since the authority to change the venue from the judge, and that to change the venue from the county, are derived from the same statute, it would seem that the authority to change from the county exists whenever there is authority to change from the judge. In a pro- ceeding to sell real estate, the title may be litigated, a fraudulent conveyance may be set aside, and many issues may be required to be tried therein of a nature which clearly characterizes them as issues in civil actions. We therefore conclude that, upon a proper and timely application, a change of venue from the county in which the estate may be pending for settlement may be taken. If reasons exist making such practice unwise, the legislature may prohibit it."''' =* Scherer v. Ingerman, 110 Ind. 428, 11 X. E. 8, 12 N. E. 304; Ever- road V. Lewis, 16 Ind. App. 65, 43 N. E. 1010. " Daniels v. Bruce, — Ind. App. — , 93 N. E. 675. =° Daniels v. Bruce, — Ind. — , 95 N. E. 569. "The decedents' estates act by its terms neither grants nor withholds the right to a change of venue from the county or a change of judge; it is as silent as to this as it is in many other matters of practice nec- essary in carrying out all of the objects of the statute, except as it is provided in § 121 (Burns 1908, § 2863) that the hearing in certain particulars shall be conducted as in other cases. "It has been held that a drainage proceeding, which is quite as much a special statutory proceeding and sui juris as a proceeding by an ad- ministrator to sell real estate, is so far a civil action that the act pro- viding for a change of venue (Burns 1908, § 422) is applicable to it. Bass v. Elliott, 105 Ind. 517, 5 N. E. 663. And such act is held applicable to a proceeding for the appointment of a guardian for a person of unsound mind. Berry v. Berry, 147 Ind. 176, 46 N. E. 470. And in proceedings to contest an election. Weakley v. Wolf, 148 Ind. 208, 47 N. E. 466. And in proceedings supplementary to execution. Burkett v. Bowen, 104 Ind. 184, 3 N. E. 768. And in a proceeding to disbar an attorney. In re Darrow, — Ind. — , 92 N. E. 369. See, also, Jaseph v. Schnepper, 1 Ind. App. 154, 27 N. E. 305 ; McCon- ahey's Estate v. Foster, 21 Ind. App. 416, 52 N. E. 619; Goodbub v. Hor- nung, 127 Ind. 181, 26 N. E. 770. "Furthermore, it is settled that a claim against a decedent's estate is a civil action within the meaning of the above statute relating to a change of venue (Lester v. Lester, Executor, 70 Ind. 201), and that the 302 INDIANA PROBATE LAW. § 2o8 § 208. Petition by creditor. — If, when the personal estate is found to be insufficient for the payment of debts, the executor or administrator neglects or refuses to proceed to make assets by a sale of the real estate, the statute provides that any creditor of the decedent, whose claim shall have been filed and allowed by the court, may file his petition showing the insufficiency of the personal estate of the decedent to pay the liabilities thereof, and that the decedent died the owner of real estate liable to be made assets for the payment of his debts, and praying an order requir- ing the executor or administrator to proceed to sell such real estate for the payment of such debts. The executor or adminis- trator shall be entitled to five days' written notice of the petition and the time when it will be presented for hearing. If, upon such hearing, the petition be found by the court to be true, and no cause be shown to the contrary, the court shall order the executor or administrator, within a reasonable time, to be fixed by the court, to prepare and file his petition for the sale of such real estate, and in default of his so doing the court shall remove him from his trust and appoint a successor, unless good cause be shown for the delay, when further time may be granted, with like consequence upon de fault. ^^ Such petition should make the executor or administrator a party, and if no executor or administrator has been appointed, such fact should be shown by the petition ; and as the sale prayed for in such petition can only be made by an executor or adminis- trator, it would be better practice for the creditor to secure the appointment of an administrator prior to the filing of his petition. And such petition should also show that the personal estate of the decedent is exhausted or that it is insufficient for the payment of same statute is applicable to a pro- to act in the matter. Whisnand v. ceeding by an administrator to sell Small, 65 Ind. 120. This section real estate. Scherer v. Ingerman, does not apply to lands conveyed by Administrator, 110 Ind. 428, 11 N. E. the decedent to defraud his creditors. 8, 12 N. E. 304." Bottorflf v. Covert, 90 Ind. 508. If "' Burns' R. S. 1908, § 2859. The a sale is ordered it must be made by petition of a creditor under this the executor or administrator. Whis- section need not allege that the ex- nand v. Small, 65 Ind. 120. ecutor or administrator has refused § 20g DISPOSITION OF REAL PROPERTY. 303 his debts. This is necessary, for the reason that the personal property of a decedent is the primary fund out of which his debts are to be paid.^* But such petition need not aver that the execu- tor or administrator has refused to act. The sale is not to be made by the creditor, but by the executor or administrator, under the same regulations as if such application had been made by such executor or administrator,^® This statute does not apply to lands which have been fraudu- lently conveyed, but to such as were owned by the decedent at the time of his death. Therefore, in an action brought by a creditor to set aside a fraudulent conveyance of real estate made by the decedent in his lifetime, a court cannot make an order requiring the executor or administrator to sell such land to make assets for the payment of debts. This must be done in another proceeding brought for that purpose.*" § 209. What is necessary to jurisdiction. — In order to give validity to the proceedings of courts, they must have jurisdiction of the parties, and of the subject-matter. Jurisdiction of the parties can only be acquired by summons, notice, or the appear- ance of the party in person or by attorney. If the court acquires no jurisdiction of a party, its proceedings cannot affect the rights of that party; therefore, where, upon the application of an ex- ecutor or administrator to sell real estate, the court orders a sale, which is made and confirmed, without notice to the heirs, or their appearance to such proceeding, such sale is void. No one is bound by proceedings, which he has had no opportunity to de- fend against.*^ ^MVhitney v. Kimball, 4 Ind. 546, be presumed. Doe v. Harvey, 3 58 Am. Dec. 638. Ind. 104; Doe v. Anderson, 5 Ind. 33. ^Whisnand v. Small, 65 Ind. 120. But if the fact appears from the rec- *" Bottorff V. Covert, 90 Ind. 508. ord that the heirs did not have no- ^^ Gerrard v. Johnson, 12 Ind. 636; tice, the sale •will be void. Babbitt Martin v. Neal, 125 Ind. 547, 25 N. v. Doe, 4 Ind. 355 ; Martin v. Starr, E. 813; Guy v. Pierson, 21 Ind. 18; 7 Ind. 224; Doe v. Bowen, 8 Ind. Hawkins v. Hawkins, 28 Ind. 66. A 197, 65 Am. Dec. 758. Where lands sale will not be held void because are situated in different counties, it the record does not show notice to is only necessary to give notice in the heirs. In such case notice will the county where the estate is pend- 304 INDIANA PROBATE LAW. 209 Where there is no proof of notice filed, and the record is silent as to whether notice was given or not, the presumption will be, unless the contrary is shown, that the proper notice was given. The record of a court of general jurisdiction need not affirma- tively show the facts which give it jurisdiction.*- But such pre- sumption will not be indulged against the direct admission of the record that no notice was given. *^ Where the facts disclosed by the record are such as not to nec- essarily exclude the inference that notice was given to the de- fendants of the pendency of the application, notice will be pre- sumed to have been given.** But the rule that, where the record is silent upon the point of notice, notice will be presumed, only applies in cases where the heirs or devisees have been made par- ties to the record. Where no mention is made of the existence of an heir, no notice can be presumed that the heir was notified. In such case the record is not silent, but speaks negatively, and in such case the sale by the administrator is void.*^ In any case, an ing for settlement. Gavin v. Gray- don. 41 Ind. 559. " Doe V. Harvey, 3 Ind. 104 ; Gavin V. Graydon, 41 Ind. 559; Crane v. Kimmer, 11 Ind. 215 ; Sims v. Gay, 109 Ind. 501, 9 N. E. 120; Langsdale V. Woollen, 120 Ind. 78, 21 N. E. 541 ; Clark v. Hillis, 134 Ind. 421, 34 N. E. 13. ^^ Doe V. Anderson, 5 Ind. 33. If an heir of the decedent die after no- tice given him of the commencement by the administrator of proceedings to sell real estate to pay debts of the estate, and a sale thereafter takes place without any further notice (or any suggestion of the death of such heir), and is affirmed, such sale is valid, and the heirs of such heir can- not attack its validity. Palmerton v. Hoop, 131 Ind. 23, 30 N. E. 874. Where notice was given to Clark, and other heirs expressly named, such proceeding is not bind- ing upon Helen I. Clark, she being an heir and not expressly named in the notice. As to her such proceed- ing is void and may be attacked col- laterally. Clark V. Hillis, 134 Ind. 421, 34 N. E. 13. "Hawkins v. Ragan, 20 Ind. 193 Hawkins v. Hawkins, 28 Ind. 66 Xicholson v. Stephens, 47 Ind. 185 Anderson v. Spence, 72 Ind. 315, Zl Am. Rep. 162; Carver v. Carver, 64 Ind. 194. After verdict, no question as to the parties defendant can be first made in such a case; so, also, as to an averment that the adminis- trator knows of no liens or claims except such as are stated. Jackson v. Weaver, 98 Ind. 307. *'Doe v. Bowen, 8 Ind. 197, 65 Am. Dec. 758; Martin v. Starr, 7 Ind. 224 ; Gerrard v. Johnson, 12 Ind. 636; Hawkins v. Hawkins, 28 Ind. § 2IO DISPOSITION OF REAL PROPERTY. 305 order of sale which is made without notice or an appearance is invaHd, and a sale made under such order is void, and ejectment will lie to recover the land sold.^^ If an heir die after notice of the proceeding by the adminis- trator to sell real estate, an order and sale made thereafter and confirmed without further notice or suggestion of the death of the heir, such sale is valid.*^ Notice may be issued by the clerk in vacation.''* When the notice is published, it must be published in some newspaper in the county where the petition is pending, if any there be.*" Whenever the administrator seeks to subject the real estate which has descended to the heirs to sale for the payment of the debts of the ancestor, he assumes a position antagonistic to them and no longer represents the heirs, so before he can obtain any valid order divesting them of their title they must have an oppor- tunity to be heard and to contest, not only the necessity of the sale, but the justice and validity of the debts for the payment of which the sale is demanded. °" § 210. What notice required. — As in ordinary adversary proceedings, there must be some kind of notice to, or a voluntary appearance of, all who are necessary parties defendant to the petition of an executor or administrator to sell real estate of his decedent to make assets for the payment of debts. As to such notice the statutes provide, "that whenever any executor or ad- ministrator of any decedent's estate shall have filed in the proper court a petition for the purpose of procuring an order for the sale of real estate for the purpose of paying the debts of such decedent's estate, that notice of the pendency of the petition and of the time and place of hearing the same shall be served upon the defendants, personally, at least ten days before the time set for the hearing of the same, unless it appear from the petition or affidavit filed therewith that the names or the residences of any "Babbitt v. Doe, 4 Ind. 355; Cox '' Palmerton v. Hoop, 131 Ind. 23, V. Matthews, 17 Ind. 367; Guy v. 30 X. E. 874. Pierson, 21 Ind. 18; Crane v. Kim- *' Shepherd v. Fisher, 17 Ind. 229. mer, 11 Ind. 215. *' Gavin v. Graydon, 41 Ind. 559. ^ Woerner Am. Law Admin., § 466. 20— Pro. Law. 306 INDIANA PROBATE LAW. § 211 of them are unknown, or that any of them are nonresidents of this state ; in which case such notice shall be given by publication, for three weeks successively, in some public newspaper published in the county in which the administration of the estate is pend- ing, if any be published therein, and if not then in some public newspaper published nearest thereto in this state, at least ten days before the time set for hearing the said petition. The notices herein provided for shall be issued by the clerk of the court and attested by his signature and the seal of the court."^^ §211. When notice may be waived. — Whenever any of the defendants to such petition are of lawful age and shall sig- nify in writing their assent to such sale, the notice required by the above section may be dispensed with as to such persons, and if such persons be minors, and their guardians shall give such assent, such notice shall not be required, but should said guardian be the executor or administrator of the estate and also guardian of the heirs of the decedent, such guardian shall not give his assent to such sale, and in all such cases notice must be given to such minors as by law now provided. ^^ With the exception mentioned in the above statute, a regular guardian of minor defendants may waive notice for them." Such notice, however, cannot be waived by a guardian ad litem. ^* ''Burns' R. S. 1908, § 2856. All 210. A guardian ad litem cannot notices pending at the time of the waive service of process on infant taking effect of this act, that have defendants. Martin v. Starr, 7 Ind. been given under existing laws of 224; Guy v. Pierson, 21 Ind. 18. the pendency and hearing of peti- ^^ Hehns v. Love, 41 Ind. 210; tions by executors and administra- Jones v. Levi, 72 Ind. 586; Seward tors to sell real estate for the pay- v. Clark, 67 Ind. 289. The guardian ment of debts of decedents' estates, of a decedent's insane widow had shall have as full force and effect the right to file a written assent for and not to be in any way affected by his ward to the petition of the ex- the passage of this act. Burns' R. ecutor in a proceeding instituted in S. 1908, § 2857. the common pleas court to sell real '- Burns' R. S. 1908, § 2858. Guard- estate for the payment of the de- ians of minors may assent to the cedent's debts. Smock v. Reichwine, sale of a decedent's real estate by 117 Ind. 194, 19 N. E. lid. his administrator and obviate the ne- '* Hough v. Canby, 8 Blackf. cessity of notice. Jones v. Levi, 72 (Ind.) 301; Robbins v. Robbins, 2 Ind. 586; Helms v. Love, 41 Ind. Ind. 74; Abdil v. Abdil, 26 Ind. 287. §211 DISPOSITION OF REAL PROPERTY. 307 A defendant is bound only in the capacity in which he waives. If the waiver of one, who is heir, is signed by him only as guard- ian of other heirs who are minors, he is not bound only as a guardian.^® Unless there is a waiver of notice filed b}'' their guardian under the above statute, notice must be always served upon minor de- fendants. To a certain extent the law recognizes the right of infants to know something of what is doing or done in their affairs; and it affords them time and opportunity to consult their friends relative to any legal proceedings instituted against them, and to furnish in defense of their rights such aid as may be in their power. For this reason the same notice, in proceedings by execu- tors or administrators to sell lands, is required for the minor defendants as for the adults.^" And while a guardian of minor defendants in such proceedings is authorized to waive notice and assent to the proceedings on behalf of his wards, a guardian ad litem, appointed for such infant defendants, cannot waive notice, or service of process upon such infants. ^^ Where, as far as the record shows, to D at its appraised value, but for the court ordered an administrator's less than half that E offered for it, sale of real estate without knowledge with the fraudulent design of put- of the infancy' of the decedent's ting the title to the land in the latter, heirs, the judgment is not void, and and of cheating the heirs of A and the failure to appoint a guardian ad B. The heirs of B were not made litem was merely collateral to that parties to the proceedings to sell, error. Clark v. Hillis, 134 Ind. 421, and had no notice thereof, and were 34 X. E. 13. minors. The sale was affirmed. °' Helms V. Love, 41 Ind. 210. Held, that the sale was not void nor °^ Hough v. Canby, 8 Blackf. subject to collateral attack. Palmer- (Ind.) 301; Babbitt v. Doe, 4 Ind. ton v. Hoop, 131 Ind. 23, 30 N. E. 355 ; Doe v. Anderson, 5 Ind. 33 ; 874. Martin v. Starr, 7 Ind. 224; De La " Robbins v. Robbins, 2 Ind. 74; Hunt v. Holderbaugh, 58 Ind. 285; Abdil v. Abdil, 26 Ind. 287. If a Pugh v. Pugh, 9 Ind. 132. A died guardian ad litem is not appointed and left five heirs. B, one of the for minors, the order of sale will be heirs, took out letters of administra- erroneous. Timmons v. Timmons, 6 tion, procured an order to sell lands Ind. 8. A guardian ad litem cannot to pay debts, but died before sale, waive the service of notice on mi- C was appointed administrator de nors of the pendency of the petition, bonis non, and secretly sold the land Martin v. Starr, 7 Ind. 224. The 2o8 INDIANA PROBATE LAW. § 212 § 212. Minor defendants, guardian ad litem. — If it shall appear that any of the heirs or devisees of the deceased are minors, the court, before hearing the petition, shall appoint a guardian ad litem for such minors; and if their interests require active opposition, the court may allow attorney's fees to such guardian. ^^ By this statute, before a hearing can be had upon a petition of an executor or administrator of a decedent to sell real estate to pay debts, the court should appoint a guardian ad litem for the defendants to such petition who are shown to be minors. And unless such guardian ad litem is so appointed, an order of the court directing the sale of the real estate would be erroneous. The record in such proceedings should show not only that a guardian ad litem had been appointed for the minor defendants, but that they had also been properly notified, or no decree or order of sale would bind them.^'-' A guardian ad litem may be appointed for minor defendants though they may have a guard- ian regularly appointed living within the jurisdiction of the court.^" Minor defendants cannot appear to such proceedings by attor- ney. They have no power to employ an attorney, but after the appointment of a guardian ad litem for them, such guardian may employ an attorney to further represent such minors in the pro- ceedings.*^^ It is the duty of the guardian, guardian ad litem, or attorney, of minor defendants in such proceedings to file an answer on be- half of such defendants, and the answer must demand strict appointment and appearance of a not consent to an order of sale of guardian ad litem for minors will lands without proof, not cure a defect caused by want of ^' Burns' R. S. 1908, § 2861. notice to them. Guy v. Pierson, 21 °' Hough v. Canby, 8 Blackf. Ind. 18. If there is no guardian ad CInd.) 301; Comparet v. Randall, 4 litem appointed for minor heirs, they Ind. 55. may, after arrival of age, bring an ""Alexander v. Frary, 9 Ind. 481. action to review and set aside the *' Doe v. Brown, 8 Blackf. (Ind.) order of sale. Seward v. Clark, 67 443; Timmons v. Timmons, 6 Ind. Ind. 289. A guardian ad litem can- 8; Guy v. Pierson, 21 Ind. 18; Alex- ander V. Frary, 9 Ind. 481. § 213 DISPOSITION OF REAL PROPERTY. 3O9 proof, as against such infants, of all matters alleged in the peti- tion. Such answer cannot admit the truth of the matters alleged, nor consent to an order of sale. It is the duty of the executor or administrator to make proof against the minor defendants of the matters alleged in his petition; otherwise, a decree of sale, so far as such minors are concerned, would be erroneous. ®- If a minor defendant has been properly notified of the pend- ency of the proceeding, a sale ordered and made without the appointment of a guardian ad litem for such minor defendant, though erroneous, would not be void.*^^ But in such case the minor may have his action to review and set aside such order on his arrival at age.^^ Where a posthumous heir was born whose birth was un- known to the administrator at the time of filing his petition and at the time the order of sale was made, a sale made upon such order would probably be void as to such posthumous heir.®^ § 213. Hearing on the petition. — Such petition shall stand for hearing on the first day of the next term after the giving of notice unless the executor or administrator shall fix a different day during the term for such hearing, by indorsement on the petition at or before the time of filing thereof. If there be not time sufficient for the giving of such notice before the close of said term, the defendants shall be notified to appear and answer the petition on the first day of the next ensuing term.^® Upon the hearing of such petition, witnesses may be com- pelled to attend ; and depositions, taken under the usual regula- tions of law, may be read ; and the parties to the petition may be examined under oath, as in other cases. ''^ '^ Hough V. Doyle, 8 Blackf. "^ Burns' R. S. 1908, § 2855. (Ind.) 300; Pugh v. Pugh, 9 Ind. ''"Burns' R. S. 1908, §2863. The 132; Grain v. Parker, 1 Ind. 374; statute of limitations of fifteen- Martin V. Starr, 7 Ind. 224; McEn- 3-ears applies to petitions to sell dree v. ^IcEndree, 12 Ind. 97. lands to pay debts, but the statute " Timmons v. Timmons, 6 Ind. 8; does not begin to run until it is dis- Clark V. Hillis, 134 Ind. 421, 34 N. covered that the personal estate is E. 13. not sufficient to pay all debts. Cole "Seward v. Clark, 67 Ind. 289. v. Lafontaine, 84 Ind. 446; Scherer *=McConnel v. Smith, 39 111. 279. v. Ingerman, 110 Ind. 428, 11 N. E. 3IO INDIANA PROBATE LAW. 213 The heirs may successfully contest such petition by showing that the debts, for the payment of which an order for the sale of land is prayed, are barred by the statute of limitations. They may also plead any other lawful defense."' In such proceeding the court has no jurisdiction to try any question involving the title to personal property. And a sale of land under an order obtained in such proceeding, when made, passes no title to the purchaser as against the heirs, in the crops growing on the land sold which were planted before the petition was filed; nor does 8, 12 N. E. 304; Falley v. Gribling, 128 Ind. 110, 26 N. E. 794; Witz v. Dale, 129 Ind. 120, 27 N. E. 498. If it is shown that there are sufficient personal assets to pay the debts, the land should not be ordered sold. Brown v. Rose, 6 Blackf. (Ind.) 69. Only so much of the land necessary to realize assets to pay the debts should be ordered sold, unless the remainder of the lands would be in- jured by selling only a portion there- of. Black V. Meek, 1 Ind. 180; Fra- lich V. Moore, 123 Ind. 75, 24 N. E. 232. "' Persons who are made parties to proceedings to sell lands are con- cluded by the judgment and order of sale. Vail v. Rinehart, 105 Ind. 6, 4 N. E. 218; Bumb v. Card, 107 Ind. ■575, 8 N. E. 713. Where the peti- tion of an administrator of a de- ceased woman avers that she died the owner in fee of the real estate, and the heirs are made parties there- to, the judgment in favor of the ad- ministrator estops the heirs from set- ting up that the only interest the woman ever had in the land was a life estate. Such a judgment cannot be collaterally attacked. Elliott v. Frakes, 71 Ind. 412, and Armstrong v. Cavitt, 78 Ind. 476, distinguished. Lantz V. Maffett, 102 Ind. 23, 26 N. E. 195. Where real estate of a de- cedent, mortgaged to secure debts, is sold by order of the probate court upon application of the administra- tors, the widow and her children be- ing made parties to the proceeding, the former by an instrument in writ- ing waiving the publication and posting of notice required by statute and assenting to the sale of the wliole, upon agreement that one- third of the proceeds should be paid to her, the sale is void, the probate court having exceeded its jurisdic- tion. The right of the heirs to as- sert title to the undivided one-third of the land is not affected by the in- valid order of sale, unless their an- cestor, through whom they claim, received the purchase-money, or was estopped to assert title by making the administrators her agents. If she received and retained her share of the purchase-price, the widow, as well as the heirs, would be estopped. Roberts v. Lindley, 121 Ind. 56, 22 N. E. 967; Riser v. Snoddy, 7 Ind. 442, 65 Am. Dec. 740 ; Gavin v. Gray- don, 41 Ind. 559; Cole v. Lafontaine, 84 Ind. 446. Crops raised upon the land after the death of the decedent do not pass to the purchaser at the administrator's sale. Rodman v. Rodman, 54 Ind. 444. § 213 DISPOSITIOX OF REAL PROPERTY. 3II such sale transfer to the purchaser the title to wood cut and corded on the land at the time of the sale/^ The heirs, devisees, or any other person interested in the real estate may appear at the hearing and have themselves made par- ties and contest the proceeding, and may show that the claims have been unjustly allowed, or that they are barred by the statute of limitations, or that the administrator has rents in his hands which they may treat as money of the estate and insist on its application to the payment of debts in exoneration of the land.'** The allowance of a claim against an estate in one state is not competent proof of indebtedness, and is not even prima facie evidence of the validity of such claim for the purpose of subject- ing real estate to sale in another state. '^ \Miere a decedent died leaving property in more than one state, the existence of personal assets in the state of his domicil suffi- cient to pay his debts is no defense to an application to sell real estate under an ancillary administration to pay debts in such ancillary jurisdiction, where the administrator at the place of domicil has refused to pay them.^- As against infant defendants, the court must have proof of the allegations in the petition. Such proof cannot be waived by either the guardian, or guardian ad litem.'^ Indeed, there must be proof, in any and every case, showing the necessity for the sale, where such proof is demanded.'* "^Barrett v. Choen, 119 Ind. 56, 58, of the allegations of the petition must 20 X. E. 145, 21 X. E. 2il2, 12 Am. be made as to minors, a guardian ad St. 363. litem having no authority to consent "Goeppner v. Leitzelmann, 98 111. to a sale. Martin v. Starr, 7 Ind. 409: Champion v. Cayce, 54 Miss. 224. 695. ■* :^Iartin v. Starr, 7 Ind. 224 ; Gav- "^McGarvey v. Damall, 134 111. in v. Graydon, 41 Ind. 559. It is 367, 25 X. E. 1005; Hull v. Hull, 35 said: "The petition shows that a W. Va. 155, 13 S. E. 49, 29 Am. St. claim was allowed in favor of the 800. creditor, and this allowance is in the "^Lawrence Appeal, 49 Conn. 411. nature of a judgment and establishes " Doe V. Anderson, 5 Ind. Zl ; Tim- a prima facie right in the adminis- mons V. Timmons, 6 Ind. 8; Quarles trator to resort to the real estate for V. Campbell, 72 Ala. 64; Fridley v. paj-ment, in the absence of personal Murphy, 25 111. 131 ; Clark v. Thomp- property-." Jackson v. Weaver, 98 son, 47 111. 25, 95 Am. Dec. 457. Proof Ind. 307. Such prima facie case is 312 INDIANA PROBATE LAW. §213 If the executor or administrator has paid the debts out of his own money, he may be subrogated to the rights of the creditors whose claims he has paid ; and a showing of this fact is sufficient proof of the indebtedness of the estate." But the proof must show that the debts paid by such executor or administrator were vahd debts of the estate and not barred by the statute of limita- tions.'^^ The evidence must also show that the personal property was insufficient to pay the debts and liabilities of the estate, and the costs and expenses of the administration.'" It is also necessary to make proof of the intestate's title to the real estate. If he has no title, a sale will be void.'® As the administrator asserts no title in himself, the question of title to the real estate only comes in question as an incident in proceedings to sell the decedent's real estate, and as such pro- ceeding is a special one, under an act which points out the man- ner in which such applications shall be made and prosecuted, who shall be made defendants, what facts shall be stated in the peti- tion, and what questions may be tried and determined, and no provision is made therein for a new trial as a matter of right, such trial is not to be allowed. ^^ The heirs, or others interested in the land, may defend against the administrator's petition by showing such facts as would make it unnecessary to sell the real estate.®" all the administrator is required to Ind. 387, 22 N. E. 256. "The pur- make, pose of the law is to afford a " Woolley V. Pemberton, 41 N. J. speedy method for the settlement of Eq. 394, 5 Atl. 139; Livingston v. estates, which is inconsistent with Newkirk, 3 Johns. Ch. (N. Y.) 312; the theory that § 1064 (Burns R. S. Pendergrass v. Pendergrass, 26 S. 1908, § 1110), should apply to pro- Car. 19, 1 S. E. 45. ceedings to sell real estate of a de- ™ Gilchrist v. Rea, 9 Paige (N. Y.) cedent for the payment of debts, and 66; Heath v. Wells, 5 Pick. (Mass.) allow any contestant a right to take 140. a new trial within one year from the "Newcomer v. Wallace, 30 Ind. rendition of the judgment." Fralich 216; Thompson v. Joyner, 71 N. Car. v. Moore, 123 Ind. 75, 24 N. E. 232. 369. '"Riser v. Snoddy, 7 Ind. 442, 65 ™ Jackson v. Weaver, 98 Ind. 307. Am. Dec. 740; Witz v. Dale, 129 Ind. "Fralich v. Moore, 123 Ind. 75, 24 120, 27 N. E. 498; Hunter v. French, N. E. 232; Liggett v. Hinkley, 120 86 Ind. 320; O'Haleran v. O'Haleran, § 213 ' DISPOSITION OF REAL PROPERTY, 3I3 It is a good defense that the decedent was not indebted to any one.^^ But it is no defense, however, to show that there were sufficient personal assets to have paid all the debts, and that they had been wasted by the administrator.®- Nor is it any defense that the land had been sold and conveyed by the heir with the consent of the administrator. A purchaser from an heir is bound to know that such land is liable to be needed to make assets for the payment of the ancestor's debts, and if, after his purchase^ the land is sold by the administrator, he cannot recover the pur- chase-money from the heir.®^ The validity of the appointment of an administrator or execu- tor cannot be questioned in such proceedings, nor can other col- lateral Cjuestions be litigated therein.^* Where the heir has appeared and assisted the administrator in defending a claim and an adjudication was had in favor of the claim, such heir cannot afterwards, on an application by the ad- ministrator to sell real estate, be heard to question the validity of such claim. ®^ The question whether the decedent had an interest in the land is one to be determined on the administrator's application to sell, 115 Ind. 493, 17 N. E. 917; Parker Ind. 430; Cartright v. Briggs, 41 V. Wright, 62 Ind. 398; Scherer v. Ind. 184; Brunner v. Brennan, 49 Ingerman, 110 Ind. 428, 11 N. E. 8, Ind. 98. Lands so sold remain liable 12 X. E. 304; Warren v. Hearne, 82 for the ancestor's debts, and may be Ala. 554, 2 So. 491 ; In re Topping's sold by the executor or administra- Estate, 9 N. Y. S. 447. They have tor in spite of the conveyance by the the right, in order to protect the land heir or devisee. Baker v. Griflfitt, from sale, to defend against the 83 Ind. 411; Scherer v. Ingerman, claims, even though they may have 110 Ind. 428, 11 N. E. 8, 12 N. E. been allowed by the administrator. 304. " Cole v. Lafontaine, 84 Ind. 446. " Riser v. Snoddy, 7 Ind. 442, 65 *'Nettleton v. Dixon, 2 Ind. 446; Am. Dec. 740; Carnan v. Turner, 6 Moncrief v. Moncrief, 11 Ind. 587; Har. & J. (Md.) 65; Shields v. Ash- Baker V. Griffitt, 83 Ind. 411; Fiscus ley, 16 Mo. 471; Hewitt v. Hewitt, 3 V. Moore, 121 Ind. 547, 23 N. E. 362, Bradf. (N. Y.) 265; Clement v. Fos- 7 L. R. A. 235. ter, 71 X. Car. 36. ^Moncrief v. Moncrief, IZ Ind. ''Smith v. Gorham, 119 Ind. 436, 587; Foltz v. Wert, 103 Ind. 404, 2 21 X. E. 1096. X. E. 950; Weakley v. Conradt, 56 314 INDIANA PROBATE LAW. §214 and if it appears that his interest is merely a Hfe estate the peti- tion should be dismissed.^" § 214. The order of sale. — The order of sale made upon an administrator's application is his authority to make the sale ; without it the sale by him will be void.^^ For this reason such orders should comply with the statute, and should as a rule fol- low the petition, and should so describe the land to be sold that it can be identified, and should specifically show what part is to be sold.«« If it is not necessary for the payment of debts to sell all the land, it should not be ordered sold unless it would greatly injure the residue not to sell it/'' If the title to the real estate is put in issue; or if the petition, averring title in the decedent, tenders such issue to his heirs, who are properly made parties to the proceeding by the administrator, the order of the court upon such petition concludes them.''*' But persons who are made parties to such proceeding in the capacity of heirs only are concluded only as heirs of the decedent whose land is ordered sold. The order of court in such case is subject to the general rule which governs judgments, that parties thereto are only concluded in the capacity in which they sue or are sued.^^ '"Grim's Appeal, 1 Grant (Pa.) "'Black v. Meek, 1 Ind. 180; 209; Manson v. Duncanson, 166 U. Fralich v. Moore, 123 Ind. 75, 24 N. S. 533, 41 L. ed. 1105, 17 Sup. Ct. E. 232; Merrill v. Harris, 26 N. H. 647. 142, 57 Am. Dec. 359; In re Dolan, ^^ Sherry v. Sansberry, 3 Ind. 320; 88 N. Y. 309. Gilchrist V. Shackelford, 72 Ala. 7. "» Jackson v. Weaver, 98 Ind. 307; ''Gelstrop v. Moore, 26 Miss. 206, Lantz v. Maffett, 102 Ind. 23, 26 N. 59 Am. Dec. 254; Teverbaugh v. E. 195 ; Craighead v. Dalton, 105 Ind. Hawkins, 82 Mo. 180; Estate of 72, 4 N. E. 425; Hutchinson v. Rose, 63 Gal. 346; Verry v. McClel- Lemcke, 107 Ind. 121, 8 N. E. 71; Ian, 6 Gray (Mass.) 535, 66 Am. Bumb v. Gard, 107 Ind. 575, 8 N. E. Dec. 423; Williams v. Childress, 25 713. Miss. 78; Montgomery v. Johnson, "^Barrett v. Choen, 119 Ind. 56, 58, .31 Ark. 74; Jemison v. Gaston, 21 20 N. E. 145, 21 N. E. 322, 12 Am. St. ■Texas 266 ; Thain v. Rudisill, 126 363 ; Erwin v. Garner, 108 Ind. 488, 9 Ind. 272, 26 N. E. 46; Adams v. N. E. 417; McBurnie v. Seaton, 111 -Larrimore, 51 Mo. 130; Griffith v. Ind. 56, 12 N. E. 101; Colglazier v. Philips, 9 Lea (Tenn.) 417, Colglazier, 117 Ind. 460, 20 N. E. 490. §214 DISPOSITION OF REAL PROPERTY. 3'^ 5 If the administrator is compelled to take back land once sold under a valid order, by reason of the failure of the purchaser to comply with the terms of his purchase, such land may be resold without any further order of court.®" An order of sale made upon the application of an executor or administrator directing the sale of a decedent's real estate for the payment of his debts, is in the nature of a judgment and cannot be collaterally impeached for mere errors or irregularities, if the court making the order had jurisdiction of the subject-matter and of the person.^' Such judgment is not, however, a final judgment. The entire matter remains under the control of the court until the land is sold, a report of the sale made to the court, and the sale confirmed, and a deed ordered to be made to the purchaser. Not until then are the proceedings in such matter brought to a final termination. The order of sale is an interlocu- tory order and may be appealed from as such if the appeal be properly taken under the statute.*** Where an issue is made on the question of title, and the court, in its order, finds that the decedent was not the owner of the land of which sale is prayed, and so decrees, although such decree is erroneous, it is conclusive upon the administrator unless ap- pealed from, or otherwise set aside.^' An order obtained by fraud is binding on the parties until set aside in some proceeding instituted for that purpose ; and a sale made under such order is not void, nor is it subject to a collateral attack.^' '"- Stowe V. Banks, 123 Mo. 672, 27 heirs of a decedent, the order of sale S W. 347. will not affect the interest they may "^ Pepper v. Zahnzinger, 94 Ind. 88. have otherwise acquired in the lands. If the court has jurisdiction of the Elliott v. Frakes, 71 Ind. 412; Bumb subject-matter and the parties, all v. Card, 107 Ind. 575, 8 N. E. 713. such parties are bound by the orders »^ Staley v. Dorset, 11 Ind. 367; of the court. Spaulding v. Baldwin, Love v. Mikals, 12 Ind. 439; Simp- 31 Ind. 376; Dequindre v. Williams, son v. Pearson, 31 Ind. 1, 99 Am. 31 Ind. 444: Lantz v. INIaffett, 102 Dec. 577. Ind. 23, 26 N. E. 195 ; Vail v. Rine- '' Parker v. Wright, 62 Ind. 398. hart 105 Ind. 6, 4 N. E. 218; Bumb '«' Palmerton v. Hoop, 131 Ind. 23, V. Card, 107 Ind. 575, 8 N. E. 713. 30 N. E. 874; Weiss v. Guerineau, When persons are parties only as 109 Ind. 438, 9 X. E. 399. 3i6 INDIANA PROBATE LAW. 214 An order of sale which is clearly within the issues formed by the pleadings is binding and conclusive upon all who were prop- erly made parties to the proceeding, and is impervious to a col- lateral attack by any one who was a party thereto.®^ As the order of sale constitutes the warrant and authority to the executor or administrator to sell, it should be in strict com- pliance with the statute, and should be certain and specific in its terms, should accord with the petition, describe the land so that it can be identified, specify the place of sale, and prescribe the method and terms of sale.''® "' Thomas v. Thompson, 149 Ind. 391, 49 N. E. 268; Watkins v. Lewis, 153 Ind. 648, 55 N. E. 83; Myers v. Boyd, 144 Ind. 496, 43 N. E. 567. °* Woerner Am. Law Admin., § 473. While it is manifestly the policy of the law to uphold judicial sales made without fraud, so as not to deter pur- chasers by encouraging the apprehen- sion that their substantial rights and interests may be sacrificed to tech- nical considerations, while courts will go very far to insure protection to innocent purchasers in collateral pro- ceedings, even in cases of gross error arising out of blunders or careless- ness of probate courts or their officers, it is obviously of the gravest importance that every step taken in subjecting the real estate to sale for the payment of debts be as nearly as possible in literal compliance with the method pointed out by the statute upon which the proceeding is based. Where particular forms are pointed out for the execution of a power, however immaterial they may appear in themselves, these forms are condi- tions that cannot be dispensed with. It is a pernicious error, fruitful of trouble and mischief, to suppose that any vague, inartificial statement of circumstances is sufficient to author- ize an order for the sale of real estate, if the applicant and the judge both know all about the matter; or that the good faith and honesty with which the application is made are a sufficient safeguard against ruinous complications and litigation that may follow an oversight or mistake. The anxiet}' of courts to vindicate the validity of judicial sales should not be relied on as a pretext for the care- lessness of executors and administra- tors, or the supineness of probate courts, in the several steps necessary for the sale of real estate. Even if the sale should be held good as against a collateral attack, and it is distressingly uncertain to what ex- tent the trial, and even appellate courts will go in that direction, yet many acts of commission or omission which will not be allowed' to invali- date the transaction in a collateral investigation may in a direct proceed- ing subject the administrator to seri- ous liability, the estate to loss and delay, and all parties concerned to vexatious and oftentimes ruinous litigation. No part of an administra- tor's duty claims more careful atten- tion, and demands more imperatively the advice and assistance of a compe- tent professional man, than his rela- tions to and duties concerning the real estate of the deceased. Woerner 214 DISPOSITION OF REAL PROPERTY. 317 Our Statute as to what shall be prescribed in the order of sale is as follows: If, upon such hearing, the court shall find the material allegations of the petition to be true, it shall enter a decree declaring the real estate liable to be sold to make assets for the payment of debts and liabilities of the estate, and em- powering the executor or administrator to sell so much thereof as may be found necessary to discharge said debts and liabilities. If it be shown on the hearing that the real estate, or any portion thereof, is incumbered by liens, the court shall, in its finding, fix the amount and extent of each lien and the priorities of the sev- eral liens. If any debt secured by lien be not due, the court shall fix the amount thereof at its present worth, rebating interest for the unexpired time, unless the real estate be sold subject to the lien. The petition shall remain pending on the docket until the real estate, or so much thereof as may be necessary, be sold for the payment of said debts and liabilities; and further sales may be ordered by the court from time to time without further peti- Am. Law Admin., § 463. It is said by Mr. Freeman, in his work on Void Execution, Judicial, and Pro- bate Sales, at page 45, that "Probate sales, we are sorry to say, are gen- erally viewed with extreme suspicion. Though absolutely essential to the administration of justice, and form- ing a portion of almost every chain of title, they are too often subjected to tests far more trying than those applied to other judicial sales. Mere irregularities of proceeding have, even after the proceedings had been formally approved by the court, often resulted in the overthrow of the pur- chaser's title. In fact, in some courts the spirit manifested toward probate sales had been scarcely less hostile than that which has made tax sales the most precarious of all the methods of acquiring title." The loose and slipshod methods of many courts of probate jurisdiction in cases where the rights and titles of heirs are involved cannot receive the approval of appellate tribunals when they come under review. While ap- plications for the sale of real estate are nominally adversary proceedings, they are, in fact, in most cases, ex parte, the administrator looking after, or being expected to look after, as well the interests of the widow and heirs as the rights of creditors. The widow and adult heirs usually make default, and the minors are represented by a guardian ad litem, who appears pro forma only. Under such circumstances, to permit the probate court to play fast and loose with petitions and orders, without re- gard to any rules of law, or orderly procedure, is to encourage a danger- ous laxity in practice, and to trifle with the important rights of prop- erty. Bell V. Shaffer, 154 Ind. 413, 56 N. E. 217. 3l8 INDIANA PROBATE LAW. § 21 5 tion or notice, upon proof that the sales ah-eady made are insuffi- cient for that purpose.^® The order of sale, except where otherwise provided by statute, should not include the interest of the widow of the decedent/ If the land included in the order of sale lies contiguous to some town or city, and can be sold to more profit to the estate if it is platted or subdivided, the court may order the executor or ad- ministrator before sale to plat the same. The statute is as fol- lows : The court ordering the sale may, upon the application of the executor or administrator, authorize him, previous to the sale, to lay out all or any part of the lands into town lots, streets, alleys and squares, and make the necessary dedication to public use of the streets, alleys and squares. An accurate plat thereof shall be reported to the court for approval, and, if approved, shall thereupon be acknowledged by the executor or administrator and recorded in like manner and with like effect as in case of private individuals, whereupon he shall proceed to sell lots upon the terms provided in the order of sale." § 215.' Order carried out by successor. — In all cases where an order of sale of real estate has heretofore been made, or shall hereafter be made on the application of any executor or adminis- trator in any decedent's estate by any of the courts of this state, and such executor or administrator has or may have died or re- signed, or has been or hereafter may be removed, his successor or successors are hereby authorized to make sale and conveyance of any such real estate upon the same terms and conditions, and subject to the same rules and regulations, as were or hereafter may be applicable to said executor or administrator who obtained such order of sale, but such successor shall give bond to account for the proceeds of such sale in the same manner as he or they should have done if said order had been obtained by them. And it shall not, in any case, be necessary to revive said order of sale ; but said successor shall carry on and conclude the proceedings '^ Burns' R. S. 1908, § 2863. = Burns' R. S. 1908, § 2869. ^Rocker v. Metzger, 171 Ind. 364, 86 N. E. 403. § 2l6 DISPOSITION OF REAL PROPERTY. 319- upon such order in the same manner as said fomier executor or administrator should have done. By this statute if an executor or administrator die, resign, is removed, or from any cause is disquahfied to act after an order for the sale of his decedent's real estate has been made, and pend- ing the sale, his successor in the trust may complete the sale with- out a further order. •'' § 216. Inventory and appraisement. — Before proceeding to the sale of the land the executor or administrator shall make a correct inventory of the real estate of the decedent and cause the same to be appraised by two persons competent to appraise the personal estate of the decedent. If the lands lie in more than one county, appraisers residing in each county may be appointed to appraise the lands therein situate. Such appraisers shall take and subscribe an oath that they will honestly appraise the real estate of the decedent at its fair cash value : Provided, however, That nothing in this act shall be so construed as to prevent the ap- praisers of one county from appraising the lands of a decedent situate in adjoining counties where it is convenient to do so. The real estate shall be appraised in as small parcels as practicable; and if specified portions of the real estate be encumbered with special liens, the executor or administrator shall cause such speci- fied portions to be appraised in a body if necessar}^ to show the value thereof. Such appraisement, when completed, shall be at- tested by the appraisers and the inventory, appraisement and oaths of the appraisers filed in court on or before the hearing of the petition. Re-appraisements of the real estate may be after- '.vard made under the order of the court when it shall be shown to the court that the appraisement is too high or too low.* The court has the power to correct, in such appraisement, an error in the description of the land appraised. A sale of de- cedent's real estate, made by an executor or administrator, would ' Gress Lumber Co. v. Leitner, 91 Todd v. Willis, 66 Tex. 704, 1 S. W. Ga. 810, 18 S. E. 62; ^lassey, Succes- 803. sion of, 46 La. Ann. 126, 15 So. 6; * Burns' R. S. 1908, § 2862. 320 INDIANA PROBATE LAW. % 2iy be erroneous where no inventory or appraisement of such real estate had been made.^ It is the pohcy of the law to uphold judicial sales so far as the same may be reasonably done, and where the record is silent as to any particular act required to be done by an officer making such sale, the presumption is that the officer did his duty.*^ It is like- wise the policy of the law to uphold, by every reasonable pre- sumption of regularity, sales made by executors and adminis- trators, and when the law requires an appraisement of the real estate of the decedent, prior to such sale, as a rule, a sale without such an appraisement would be a nullity; but in the absence of proof to the contrary, the record being silent, such appraisement will be presumed to have been made." If the court has acquired jurisdiction, the validity of a sale of a decedent's real estate by his administrator is not affected by the fact that the appraisers of such real estate were selected by the administrator and the ap- praisement of the real estate made by them before his appoint- ment as administrator. This is an irregularity, but nothing more.^ Also the failure of the appraisers to sign the appraisement is a defect, but one which will not avoid the sale as against a pur- chaser in good faith. ^ § 217. Bond for sale of real estate. — As the real estate of a decedent is not primary assets in the hands of his executor or 'Lasure v. Carter, 5 Ind. 498. 483; Talbott v. Hale, 72 Ind. 1; Where the will directs that real es- Jones v. Kokomo &c. Assn., 77 Ind. tate shall be appraised before sale, it 340; Woolen v. Rockafeller, 81 Ind. will be presumed, after a sale by the 208. executor or administrator, in the ab- ' Davis v. Hoover, 112 Ind. 423, 14 sence of proof to the contrary, where X'. E. 468; Evans v. Ashby, 22 Ind. the deed purports to have been made 15; Rorer on Judicial Sales, 843,857; in accordance with the will, and Burns' R. S. 1908, § 2882. where the public records have been ' Rice v. Cleghorn, 21 Ind. 80. destroyed, that an appraisement was •' Worthington v. Dunkin, 41 Ind. had. Burns' R. S. 1908, § 479; Da- 515; Aloore v. Wingate, 53 Mo. 398; vis V. Hoover, 112 Ind. 423, 14 N. E. Fleming v. Bale, 23 Kan. 88; John- 468. son v. Beazley, 65 Mo. 250, 27 Am. 'Rorer on Judicial Sales, 14, 57 Rep. 276n. and 776; White v. Cronkhite, 35 Ind. 8 217 DISPOSITION OF REAL PROPERTY. 32 1 administrator, it is the law in this state that the general adminis- tration bond is not liable for the proceeds of a sale of land made by an executor or administrator; therefore, previous to making an order for any such sale, the executor or administrator shall file in the office of the clerk of court, a bond payable to the state of Indiana in a penalty not less than double the appraised value of the real estate to be sold, with sufficient freehold sureties, to be approved by the court, and conditioned for the faithful dis- charge of his trusts according to law." The failure of an executor or administrator to give the bond required by this statute, and an order for the sale of a decedent's land is made by the court upon proper application, both the court and such executor or administrator mistakenly supposing that the statute had been complied with, will not render void a sale made under such order and properly reported to and confirmed by the court, where the money received at such sale is faithfully ac- counted for by the executor or administrator.^^ The bond required by this statute is only to secure the proper discharge, by the executor or administrator, of his duties in re- gard to the sale of the decedent's lands, and the proper account- ing for the proceeds arising from such sale,^- the sureties on such bond being liable only for such amounts as the administrator or executor derives from the sale of the real estate." Where an administrator is ordered to give bond, and such bond is filed, although it does not appear in the record, the presump- tion is that a bond was properly executed.^"* '"Burns' R. S. 1908, § 2870. '=Worgang v. Clipp, 21 Ind. 119, "Foster v. Birch, 14 Ind. 445; Mc- 83 Am. Dec. 343. Keever v. Ball, 71 Ind. 398; Jones v. "Warwick v. State, 5 Ind. 350; French, 92 Ind. 138; Dequindre v. Bartch v. State, 17 Ind. 506; Fleece Williams, 31 Ind. 444; Clark v. Hillis, v. Jones, 71 Ind. 340. 134 Ind. 421, 34 N. E. 13. If the land " Saul v. Frame, 3 Tex. Civ. App. is sold by the administrator with the 596, 22 S. W. 984; Clark v. Hillis, consent of the heirs, without an or- 134 Ind. 421, 34 N. E. 13. Where an der of court, a bond given to cover administrator was ordered to give an the proceeds of the sale is enforcible additional bond to secure the pro- against sureties. Fleece v. Jones, 71 ceeds of a sale of the real estate, Ind. 340. and it appears from the record that 21 — Pro. L.\w. 322 INDIANA PROBATE LAW. § 2l8 The proceeds of a sale of real estate by an administrator or executor do not become general assets in his hands, in such a way as to make the sureties upon his original bond liable for the mis- application of the proceeds of such sale." While the statute says "sureties," yet if a bond with one surety is deemed sufficient and is approved, a sale under it will be valid."' § 218. The interest of the widow. — Tenancies by the cur- tesy and in dower no longer exist in this state.. And the widow of a deceased husband now takes her interest in his real estate in fee-simple as the heir of such husband.'' But such widow is an heir of her husband only in a special and limited sense, and not in the general sense of the term.'^ At common law the surviving wife was not an heir of the husband, and her rights in his real estate, in this state, are those created by statute alone.'" The widow's interest in such real estate is given her by law as a sub- stitute for her right of dower at common law.'" In the case of Noel V. Ewing, 9 Ind. ^^l^ the court says: "It is not dower itself which the law holds sacred. It is the purpose for which dower was reserved; it is the support of the widow out of the wealth which she has helped to acquire which the law favors. No mat- ter what the name — whether dower or some other estate — they are all the same. The support of the widow is the end to be at- tained. The law of 1852 substituted a third in fee in lieu of a third for life. The court must regard the substitute with the same favor and administer it with the same liberality extended he did so, it will not be presumed in make a sale for the administrator the absence of such bond that it was and has given bond, the appointment not executed as ordered. Marquis of the commissioner, being without V. Davis, 113 Ind. 219, IS N. E. 251; authority, is void, the sale of the Clark V.' Hillis, 134 Ind. 421, 34 N. land by him is void, the bond given £_ 13_ is void even as a common law bond. "Reno V. Tyson, 24 Ind. 56; Col- State v. Younts, 89 Ind. 313. burn v. State, 47 Ind. 310; State v. '' Fletcher v. Holmes, 32 Ind. 497; Cloud, 94 Ind. 174. Bowen v. Preston, 48 Ind. 367; '" Sc'hneck v. Cobb, 107 Ind. 439, 8 Thacher v. Devol, 50 Ind. 30. N. E. 271; Marquis v. Davis, 113 ^^Unfried v. Heberer, 63 Ind. 67. Ind. 219, 15 N. E. 251. Where a '' Gaylord v. Dodge, 31 Ind. 41. commissioner has been appointed to =" McCord v. Wright, 97 Ind. 34. 2l8 DISPOSITION OF REAL PROPERTY. 323 to dower, and for the same reason— that the widow is the fa- vorite of' the law." As against the heirs of her husband, the widow is entitled to one-third of all the real estate of which he died the owner, and this amount can only be reduced in favor of her husband's creditors.-' It is the established rule of law in this state that the interest of a widow in the lands of her deceased husband cannot be sold to pay his debts upon the application of the executor or adminis- trator of his estate. The decisions of the Supreme Court go very far on this point, for they hold that the court has no jurisdiction to render a judgment directing a sale of the widow's interest; and an order made by a court in a cause where it has no jurisdic- tion is void, and no title can be built upon it." If, however, the widow consents to such sale, and afterwards receives her share of the purchase money, she would be estopped from disputing the validity of the sale.^^ Where the widow is made a defendant to an administrator's =^' Johnson v. Johnson, 9 Ind. 28; Louden v. James, 31 Ind. 69; Kid- well V. Kidwell, 84 Ind. 224. Orders for the sale of lands of decedents to pay debts do not affect the interest of the widow in such lands when she is only a party to such proceedings as such widow. Kent v. Taggart, 68 Ind. 163; Elliott v. Frakes, 71 Ind. 412; Compton v. Pruitt, 88 Ind. 171 Pepper v. Zahnzinger, 94 Ind. 88 Clark V. Deutsch, 101 Ind. 491 Hutchinson v. Lemcke, 107 Ind. 121, 8 N. E. 71. - Hanlon v. Waterbury, 31 Ind. 168; Williams v. Williams, 125 Ind. 156, 25 X. E. 176; Kent v. Taggart, 68 Ind. 163; Elliott v. Frakes, 71 Ind. 412; Armstrong v. Cavitt, 78 Ind. 476; Compton v. Pruitt, 88 Ind. 171; Pepper v. Zahnzinger, 94 Ind. 88; Clark V. Deutsch, 101 Ind. 491; Brvan v. Uland, 101 Ind. 477; Bumb V. Gard, 107 Ind. 575, 8 N. E. 713 ; Rocker v. Metzger, 171 Ind. 364, 86 X. E. 403. =" Lewis V. Watkins, 150 Ind. 108, 49 X. E. 944; Smock v. Reichwine, 117 Ind. 194, 19 X. E. lid; Pepper v. Zahnzinger, 94 Ind. 88; Roberts v. Lindley, 121 Ind. 56, 22 N. E. 967; Hutchinson v. Lemcke, 107 Ind. 121, 8 X. E. 71. The mere signing of a writing by a widow, waiving the no- tice required by statute and consent- ing that her interest in the land may be sold, will not confer jurisdiction on the court to order the sale of such interest. Roberts v. Lindley, 121 Ind. 56, 22 N. E. 967. The guardian of an insane widow may assent to the sale of the interest of such widow in the lands of the decedent, in proceedings to sell lands to pay the debts of the decedent. Smock V. Reichwine, 117 Ind. 194, 19 X. E. 776. 324 INDIANA PROBATE LAW. § 219 petition to sell lands for the payment of the debts of her hus- band, and on the hearing of such petition she makes default, it gives no power to sell her interest in such lands, and if such interest is sold the purchaser takes neither title nor color of title to such interest. The sale, so far as the widow's interest is con- cerned, is an absolute nullity. The statute of limitations cannot, in such case, bar the widow, nor will a receipt by her of part of the purchase-money of such sale estop her from claiming her in- terest in such land; nor can she be compelled by partition to accept land of the other heirs in lieu of her interest so sold.-* The widow cannot be deprived of her interest in the land with- out her own fault and without her consent, express or implied; and the mere receipt by her of the proceeds of the sale of land as part of her distributive share of her husband's estate, or her presence at the sale, will not work an estoppel against her."^ If her interest has been sold without her consent, she will not be barred a recovery of the land by the five-year statute of limita- tions; but she will be barred by the limitation of fifteen years. -"^ § 219. Same — The statute. — If the decedent leave a widow, and the real estate owned by him at his death shall not exceed ten thousand dollars in value, the court shall direct the sale of the undivided two-thirds part thereof for the payment of said debts and liabilities; and if the value thereof exceed ten thousand dol- lars, and do not exceed twenty thousand dollars, the court shall order the sale of the undivided three-fourths thereof; and, if it exceed in value twenty thousand dollars, the undivided four- fifths thereof, for said purpose." If a husband dies testate or intestate, leaving a widow, one- "Hanlon v. Waterbury, 31 Ind. husband, and being a party to the 168; Elliott v. Frakes, 71 Ind. 412; proceeding fails to set up her claim, Unfried v. Heberer, 63 Ind. dl ; Arm- she will be bound by the order of sale, strong V. Cavitt, 78 Ind. 476 ; Compton Hutchinson v. Lemcke, 107 Ind. 121, V. Pruitt, 88 Ind. 171 ; Matthews v. 8 N. E. 71. Pate, 93 Ind. 443. -'Nutter v. Hawkins, 93 Ind. 260; =^ Compton V. Pruitt, 88 Ind. 171. Compton v. Pruitt, 88 Ind. 171; Irey If a widow claims to own all the v. Mater, 134 Ind. 238, Zl N. E. 1018. lands as a tenant by entirety with her "" Burns' R. S. 1908, § 2864. § 219 DISPOSITION OF REAL PROPERTY. 325 third of his real estate shall descend to her in fee-simple free from all demands of creditors : Provided, however, That where the real estate exceeds in value ten thousand dollars, the widow shall have one-fourth only, and where the real estate exceeds twenty thousand dollars, one-fifth only, as against creditors.^^ The court in the case of Hutchinson v. Lemcke et al., 107 Ind. 121, on page 131, in summing up the propositions of law to be deduced from the foregoing line of decisions, say, that they de- cided, first, that the courts have no authority to order the sale of lands to pay debts against the decedent's estate except the lands belonging to, and forming a part of, the estate; second, that upon the death of the husband, one-third, one-fourth, or one- fifth of his real estate, according to the value of the whole, de- scends to, and becomes the property of his widow in fee-simple, free from all demands of creditors, and does not belong to, or form a part of, the decedent's estate; third, that parties to a pro- ceeding by the administrator to obtain an order for the sale of real estate to pay debts are bound, and only bound, in the capacity in which they are sued ; fourth, that the statement in the petition for such an order, that there was a surviving widow, is, in law, equivalent to a statement that she is the owner in fee-simple of the third, fourth or fifth part of the real estate, according to the value of the whole, as against all demands of creditors, and that, therefore, the application is, in law and in fact, only to sell the remainder as belonging to, or forming a part of, the estate. It results from these propositions that in no case can the court, under our present system, for the purpose of paying debts against the estate, order the sale of the portion of the real estate which the widow owns by reason of her marital rights. If she is not made a party to the proceedings by the administrator to procure an order for the sale of the real estate, of course, neither she nor her rights can be affected thereby. If she is made a party to such proceedings as a widow, the record will affirmatively show her rights; that as such widow she owns a part of the real estate; that the part she thus owns is not a part of the estate liable for "^ Burns' R. S. 1908, § 3014. 326 INDIANA PROBATE LAW. g 220 the debts, and hence cannot be sold for that purix)se. And thus the record will be notice to the court and to the world that her portion of the real estate cannot be, and has not been, sold by the administrator. A statement of the real estate of which the de- cedent was the owner is necessarily a statement that the widow owns a portion of it, which is not subject to sale by the adminis- trator. § 220. Same — When her interest may be sold. — There are only two instances in which the court has the power to order the sale of the whole real estate of a decedent, including the widow's interest, in a proceeding by the executor or administrator to sell the decedent's real estate to pay debts. One is where, under the provisions of the statute authorizing a partition of the widow's interest,-'' it is found that such interest cannot be set off to her in severalty without damage to all the owners and injury to the sale of the land ; in such case the court may direct the sale of the whole land, including the interest of the widow, but the full share of the widow in the gross proceeds of the sale must be paid to her."" The other instance is where her interest in the deceased hus- band's real estate is liable to sale to satisfy some mortgage or other lien upon the real estate, in which she. by some act or con- sent, has bound herself. In this case the court can order the whole of the land sold to pay such lien, and may order the pay- ment to the widow of her share or such part of her share out of the gross proceeds of such sale as shall remain after satisfying the lien.^^ In these two instances the widow's interest in her deceased husband's real estate may be ordered sold in a proceeding by his personal representative to make assets for the payment of his debts, whether she consents or not, but in either case her share of such real estate is no more liable for the payment of the debts, except as to the particular lien or liens, than it is in other cases. And when the lien for which the land has been sold has been =' Burns' R. S. 1908, § 2865. '' Lewis v. Watkins, ISO Ind. 108, '"Lewis V. Watkins, 150 Ind. 108, 49 N. E. 944; Shobe v. Brinson, 148 49 N. E. 944. Ind. 285, 47 N. E. 625. § 221 DISPOSITION OF REAL PROPERTY. 327 satisfied, she is entitled to her full share of the gross proceeds of the sale if so much remains, and if not, she is entitled to all that does remain, and the court has no power to direct a contrary dis- position of it. For all the rules limiting the power of the court to order the sale of the interest of the widow apply with equal force to any effort of the court to dispose of her share of the proceeds after sale.^" The widow's statutor}' allowance and her interest in her husband's real estate can only be reduced by the amount necessary to defray the expenses of administration, last sickness, and funeral of the deceased husband. ^^ .§ 221. Same — Sale to pay liens. — If the interest of the widow in the real estate of a deceased husband be liable to sale to satisfy a lien on such real estate, the court shall have power, in proceedings for the sale of such real estate for the payment of debts, to direct the sale of the whole thereof, including the widow's interest, to discharge such lien, and to order the payment to her of her share of the gross proceeds of the sale after satisfy- ing such hen.^* The right of the widow, under the statute, to an interest in her deceased husband's real estate is absolute against his creditors, unless by joining with her husband in a mortgage of such real estate she has waived her right, and even then the waiver operates only in favor of the mortgagee; and other creditors cannot reap advantages against her from the fact that she has thus joined in a mortgage to one. A man died intestate leaving no estate except two separate tracts of land, upon each of which was a separate mortgage in which the wife had joined. The administrator of his estate hav- ing obtained an order of court to sell the lands for the purpose of satisfying the mortgages, first sold one tract and paid off the mortgages thereon and then paid to the widow one-third of the residue, applying the balance on the general debts of the estate. He then sold the other tract and paid off the mortgage upon it "" Lewis V. Watkins, 150 Ind. 108, 49 '' Comer v. Light, — Ind. — 93 N. X. E. 944; Denton v. Arnold, 151 E. 660. Ind. 188, 51 X. E. 240; Overturf v. '* Burns' R. S. 1908, § 2866. Martin, 170 Ind. 308, 84 X. E. 531. 328 INDIANA PROBATE LAW. § 221 and gave the widow one-third of the proceeds remaining from that sale. Held, that he should have applied the balance of the proceeds of the first sale, after satisfying the mortgage and pay- ing the widow one-third of the gross proceeds remaining, to the discharge of the mortgage upon the second tract and not to the claims of the general creditors.^^ It is the duty of an administrator to apply all money not needed to pay claims expressly preferred by statute to the payment of liens upon real estate so as to secure to the widow her interest in such real estate free from all incumbrance.^^ The policy of the law is to so administer a decedent's estate, if it can be done, as to secure to the widow her interest in the lands of her husband. To this end it is the duty of the administrator to apply all the personal assets in his hands, if necessar}% to pay hens on the land, even to the exclusion of the general creditors; and he is also bound to apply two- thirds of the proceeds of the sale of real estate of such deceased husband, if necessary, to that purpose.*^ It is the widow's right to have her interest in the lands of her deceased husband discharged from a mortgage existing at the time of his death before the payment of the general debts of the estate.^ ^ For she is entitled to have the personal assets, in so far as the same are not required in the payment of claims which are ex- pressly preferred, applied to the payment of mortgages or other ^' Perry v. Borton, 25 Ind. 274; payment of the general debts. State, Sparrow v. Kelso, 92 Ind. 514; Mor- ex rel. v. Mason, 21 Ind. 171; Perry gan V. Sackett, 57 Ind. 580; McCord v. Borton, 25 Ind. 274; Hunsucker v. V. Wright, 97 Ind. 34. Smith, 49 Ind. 114; Morgan v. Sack- *° Sparrow v. Kelso, 92 Ind. 514 State, ex rel., v. Mason, 21 Ind. 171 Clarke v. Henshaw, 30 Ind. 144 ett, 57 Ind. 580; Bowen v. Lingle, 119 Ind. 560, 20 N. E. 534; Home &c. Bank v. Peoples &c. Bank, — Ind. Newcomer v. Wallace, 30 Ind. 216. App. — 96 N. E. 710. If the in- ^' Bowen v. Lingle, 119 Ind. 560, terest of the widow is sold under 20 X. E. 534. a mortgage to pay the debts of her ''^ Cunningham v. Cunningham, 94 husband she is entitled to reimburse- Ind. 557; State v. Kelso, 94 Ind. 587. ment out of the personal estate be- The widow of a decedent has a right fore payment of general debts. Mc- to have the liens on the lands paid Cord v. Wright, 97 Ind. 34. out of the personal estate before the §221 DISPOSITION OF REAL PROPERTY. 329 liens which affect her interest in the estate and to clear the same of incumbrances. And if the personal assets available are not sufficient to protect her interest she is entitled to have all the real estate of her deceased husband other than that which de- scends to her, sold and the proceeds applied to the payment of liens on the real estate so as to protect the interest the law gives her.^^ A mortgage for purchase-money of real estate will bind the widow's interest in the mortgaged premises whether she signed such mortgage or not, and such interest is liable to sale at the hands of the executor or administrator of the husband to satisfy such mortgage. ^° Where the whole of a decedent's land has been sold, after his death, under a foreclosure of mortgages in which his wife had joined, she, as his widow, is entitled to be reimbursed for her interest in such lands out of the personal estate of her husband in the hands of his administrator, in preference to the claims of the general creditors.*^ of the estate, and she" (the widow) "has a right to require him, to make his claim out of other assets, per- sonal and real, if he can do so after the payment of such expenses above named as have preference, and there- by save to her the third of the land to which she would be entitled ex- cept for the mortgage." The case of State, ex rel., v. Mason, 21 Ind. 171; Clarke v. Henshaw, 30 Ind. 144; Xewcomer v. Wallace, 30 Ind. 216, are referred to as declaring the same general principle. *" Burns' R. S. 1908, § 3033; Den- ton v. Arnold, 151 Ind. 188, 51 N. E. 240; Frain v. Burgett, 152 Ind. 55, 50 X. E. 873, 52 N. E. 395; Sharts v. Holloway, 150 Ind. 403, 50 N. E. 386; Vandevender v. Moore, 146 Ind. 44, 44 X. E. 3; Overturf v. Martin, 170 Ind. 308, 84 N. E. 531. "McCord V. Wright, 97 Ind. 34. While the widow's interest may not ='Shobe v. Brinson, 148 Ind. 285, 47 N. E. 625; Lewis v. Watkins, 150 Ind. 108, 49 X. E. 944; Overturf v. Martin, 170 Ind. 308, 84 X. E. 531; Garretson v. Garretson, 43 Ind. App. 688, 88 X. E. 624; Denton v. Arnold, 151 Ind. 188, 51 N. E. 240. In Perry v. Borton, 25 Ind. 274, it was held that the widow's rights are paramount, and that the administra- tor must apply all money, not re- quired for the payment of claims expressly preferred by statute, to the payment of mortgage liens, in order that the widow may receive her one- third of the real estate free from incumbrance. According to the doc- trine of that case, neither the heirs nor the general creditors possess any claim which will be allowed to re- duce the widow's interest. The same doctrine is asserted in Hunsucker v. Smith, 49 Ind. 114, where it was said : "It is his duty as administrator 330 INDIANA PROBATE LAW. g 222 If a decedent, in his lifetime, invests his wife's money in real estate, and takes the title in his own name without her knowledge or consent, she will have a just and valid claim against his estate after his death for the amount of her money so invested/'- Or she might, under certain circumstances, enforce a resulting trust in her favor against the land, and such land could not be held liable for his debts.*^ But a party whose money is invested in lands by another in fraud or breach of trust is not bound to take the land, or insist on his lien, but may demand payment of the money.** The interest of the widow is liable to the lien of judgments existing against her hus1)and's real estate at the date of mar- riage.*^ Also the lien of a vendor for the purchase-money due him.*« g 222. Same — Setting off the widow's interest. — If the de- cedent leave a widow, and it appear to the court tliat it would be to the interest of the estate that her share in the real estate of the decedent be set off to her in severalty, and the residue subjected to sale, the court shall cause such partition to be made in said proceeding in like manner as is pro\ided by law for the partition of real estate among tenants in common. If the commissioners report that such partition cannot be made without damage to the be sold by her husband's administra- Itound by tlie order. Hutchinson v. tor, yet if she is dead and her heirs Lcmcke, 107 Ind. 121, 8 N. E. 71. are made parties to a proceeding by *" Tracy v. Kelley, 52 Ind. 535 ; such administrator to sell the whole Malady v. McEnary, 30 Ind. 273; land, such heirs will be bound by the Xoble v. Morris, 24 Ind. 478. order obtained. Bumb v. Gard, 107 "2 Story's Equity, § 1211. Ind. 575, 8 N. E. 713. " Whitehead v. Cummins, 2 Ind. '^Bristor v. Bristor, 93 Ind. 281; 58. Armacost v. Lindley, 116 Ind. 295, 19 ""Keith v. Hudson, 74 Ind. 333; N. E. 138; Dayton v. Fisher, 34 Ind. McMahan v. Kimball, 3 Blackf. 356; Garner v. Graves, 54 Ind. 188. (Ind.) 1; Crane v. Palmer, 8 Blackf. A widow claimed the entire land as (Ind.) 120; Fisher v. Johnson, 5 Ind. tenant by entirety with her husband. 492 ; Talbott v. Armstrong, 14 Ind. She was made party to a proceeding 254; Patton v. Stewart, 19 Ind. 233; by the administrator of the husband Alexander v. Herbert, 60 Ind. 184; to sell such land. She did not appear Ballew v. Roler, 124 Ind. 557, 24 N. or set up her claim. Held, she was E. 976, 9 L. R. A. 481 n. I 223 DISPOSITION OF REAL PROPERTY. 331 owners, then the court may direct the whole of the real estate, including the widow's interest, to be sold by the executor or ad- ministrator, and the full share of the widow in the gross proceeds of the sale paid to her on confirmation of the sale.^^ An administrator or executor may also compel partition, as a tenant in common or joint tenant may do, whenever, in the dis- charge of his duties as such executor or administrator, it shall be necessar}' for him to sell the estate of the decedent therein/' In an action by a widow against the heirs and the adminis- trator of the estate for a partition of her deceased husband's lands, a cross-bill filed by the administrator seeking to subject the land to sale for the payment of debts will not lie/' And where, in a partition proceeding between a widow and the heirs of a decedent, the land is sold prior to the final settlement of the estate of such decedent, and the purchaser of the land, to save it from a sale by the administrator of the estate to pay debts, pays to such administrator the amount of such debts, such purchaser cannot recover the amount so paid from the widow and hen-s. The payment by him to the administrator is a voluntary pay- ment.'" Under the first section of the statute above set out the widow's interest in her husband's real estate may be sold whether she is consenting thereto or not; but, if so sold, she becomes entitled to her full share out of the gross proceeds of such sale. Her share in the proceeds of such sale is no more liable to the debts of her husband than was the land out of which they are derived. '' S 223. Same — Right of election. — The ancestor by his own act may cut ot¥ the heir, but the husband cannot cut off his wife by any act he may do either by deed or will. But by making a provision for her in his will which is intended by him to be in lieu of her legal rights in his estate, he can thus after his death *' Burns' R. S. 1908, § 2865 ; Lewis '" Douthitt v. Smith, 69 Ind. 463 ; V. Watkins, 150 Ind. 108, 49 X. E. Clayton v. Bloiigh, 93 Ind. 85. 944 '"Weakley v. Conradt, 56 Ind. 430. "Burns' R. S. 1908, § 1243. "Lewis v. Watkins, 150 Ind. 108, 49 N. E. 944. 332 INDIANA PROBATE LAW. § 22^ put her to her election to accept the provision made for her in his will or to take under the law." The widow takes an interest in her deceased husband's real estate by descent as his heir, and if other provision is made for her by the will of her husband, she may elect to take under the will or by the law, and such election requires on her part the per- fomiance of some positive affirmative act, indicating her inten- tion to elect. Formerly, if she remained silent as to such election, she was presumed to hold by descent and not under the will. Now, however, this presumption is changed, and if she does not, within the time given by the statute, and in the manner therein pointed out, elect in writing, she will be presumed to have taken the provision made for her by the will, and not under the law." The right of election is strictly a personal right, and can only be exercised by the widow; and if she should die before the time for the election had expired, the right would expire with her in the absence of a statute authorizing an election to be made after- ward by her heirs or representatives.''* The right of election is a statutory privilege conferring new and important benefits, and outside of the statute has no exist- ence ; and it must therefore be exercised in substantial compliance with the statute.'^ The statute authorizing an election by the widow, while in terms applying to her interest in his lands, is also held to apply to the specific allowance of five hundred dollars, given her by statute, and the widow may bar herself by accepting provisions made for her in her husband's will which are inconsistent with her right to retain such amount under the law.^" ==WetherilI v. Harris, 67 Ind. 452; Ewing v. Ewing, 44 Mo. 23; Fosher Hopkins v. Quinn, 93 Ind. 223; Ren- v. Guilliams, 120 Ind. 172, 22 N. E. ner v. Ross, 111 Ind. 269, 12 N. E. 118. When a widow elects to take 508; Heavenridge v. Nelson, 56 Ind. under a will instead of under the 90; Leach v. Prebster, 39 Ind. 492. law, lands devised to her will be lia- "' Burns' R. S. 1908, §§ 3043, 3045, ble to be sold to pay the debts of the et seq. decedent. Kayser v. Hodopp, 116 '* Pinkerton v. Sargent, 102 Mass. Ind. 428, 19 N. E. 297. 568; Woerner Law Administration, '" Shafer v. Shafer, 129 Ind. 394, 270; Eltzroth v. Binford, 71 Ind. 455. 28 N. E. 867; Shipman v. Keys, 127 "Price V. Woodford, 43 Mo. 247; Ind. 353, 26 N. E. 896; Claypool v. § 224 DISPOSITION OF REAL PROPERTY. 333 As to when the widow will be put to her election the rule is thus stated : "Where a husband has made specific provision for his widow, and has also disposed of all his other property in such a way as to make it apparent that the assertion by the widow of the right to take both under the law and under the will would defeat the manifest purpose of the testator, she will be confined to the provisions made by the will"^' unless she make her election according to the statute. In all cases where there is a will, the widow is conclusively bound by it, unless she renounces its provisions and elects in the manner pointed out in the statute.^* And when a right depends upon the fact that the widow did elect to take under the will, the party asserting the right must allege the fact."'' § 224. The interest of the widower. — The statute provides that if a wife die testate or intestate, leaving a widower, one- third of her real estate shall descend to him, subject however, to its proportion of the debts of the wife contracted before mar- riage.*"' It is said that "the inference from this section manifestly is that the right of the surviving husband to one-third part of the real estate of which his wife has died seized is absolute, except in cases in which this right has been waived by some agreement, either ante-nuptial or post-nuptial, or where he is restrained by some estoppel which he has imposed upon himself."®^ It is given him as a substitute for the estate he formerly had in Jaqua, 135 Ind. 499, 35 N. E. 285; Fla. 331; Collins v. Collins, 126 Ind. Richards v. Mollis, 8 Ind. App. 353, 559, 25 X. E. 704, 28 N. E. 190 ; Cow- 35 N. E. 572; Bower v. Bowen, 139 drey v. Hitchcock, 103 111. 262; Ind. 31, 38 N. E. 326; Whetsell v. Dougherty v. Barnes, 64 Mo. 159. Louden, 25 Ind. App. 257, 57 N. E. "'Wilson v. Moore, 86 Ind. 244; 952. Wetherill v. Harris, 67 Ind. 452; "INIcDonald v. Moak, 24 Ind. App. Hopkins v. Quinn, 93 Ind. 223. 528, 57 N. E. 159 ; Shafer v. Shafer, ^ Burns' R. S. 1908, § 3016. 12 Ind. 394, 28 N. E. 867; Block v. ''Roach v. White, 94 Ind. 510; Butt, 41 Ind. App. 487, 84 N. E. 357. Leach v. Rains, 149 Ind. 152, 48 N. =" Fosher v. Guilliams, 120 Ind. 172, E. 858. 22 X. E. 118; Stephens v. Gibbes. 14 334 INDIANA rnuCATE LAW. ^ 224 his wife's lands by the curtesy, and like the estate the law gives the wife in the lands of her husband, this statute should receive a liberal construction for the benefit of the family and surviving children. For this reason it is held that the widower's interest in the real estate which descends to him from his deceased wife is not liable for the general debts of the wife. It is not even liable for the costs of administration, and the expenses of her last ill- ness, nor for her funeral expenses. Barring specific liens against it he takes such interest as entirely distinct and free from the claims of creditors as if he had acquired it by conveyance from some third person."- Where the husband's interest in the lands of his deceased wife is incapable of i)artition and the court, on the application of her administrator, orders all the lands sold, such husband is entitled to the one-third of the gross proceeds of such sale and the admin- istrator cannot set off, as against the widower's share in the fund derived from the sale, a judgment obtained by such administrator against the husband for the funeral expenses of the wife; the court holding that the widower's one-third of such fund in the hands of the administrator did not and could not become assets of the estate of the wife.®^ The interest of the husband in the land of his deceased wife is subject, however, to the payment of a mortgage placed thereon by the wife, in which mortgage he had joined."^ The in^rest of the husband in lands of his wife may be waived by an ante- nuptial settlement of their rights in each other's property, and he may also estop himself by an executed post-nuptial agreement."' The interest the husband takes is liable to its proportionate share of the debts of the wife contracted before marriage. At ^ Kemph v. Belknap, 15 Ind. App. 553, 68 N. E. 598 ; Pearson v. Kepner, n, 43 N. E. 891 ; Weaver v. Gray, Zl 29 Ind. App. 92, 63 X. E. 38. Ind. App. 35, 76 N. E. 795; Hamp- *" Banta v. Smith, 41 Ind. App. 364, ton V. Murphy, 45 Ind. App. 513, 86 83 N. E. 1017; Kinney v. Heuring, 44 X. E. 436, 88 N. E. 876. Ind. App. 590, 87 N. E. 1053, 88 N. E. *" Weaver v. Gray, Zl Ind. App. 35, 865. Unger v. Nellinger, Zl Ind. App. 76 N. E. 795. 639, 11 N. E. 814. '* Herbert v. Rupertus, 31 Ind. App. ^^0 DISPOSITION OF REAL PROPERTY. 335 common law his liability terminated at the wife's death, but this statute continues such liability."" Where the wife dies testate having made provision for her husband in her will, he cannot hold both under the will and under the law but will be put to his election, which election must be exercised bv him in the same manner and within the same time as is required by law for an election by a widow." And though the wife mav have made no provision for the husband in her will yet he may elect to abide by the terms of the will and in this way bar himself of any claim to an interest in her property.'" ^ 225. As to liens on the real estate.— If the real estate, or any part thereof, ordered to be sold shall be encumbered with liens, the court shall, in the order of sale, direct the sale of the real estate to discharge all or any of the liens, or subject to all or any of the liens thereon. If the sale be made to discharge such liens the purchaser shall take and hold the real estate freed from such lien, and the lien shall attach to the fund arising from the sale. If the sale be made subject to such lien, the purchaser shall execute his bond, payable to such executor or administrator, with penaltv and surety to the acceptance of the latter, conditioned that he will pav and discharge the lien and hold the executor or administrator, 'and all others interested in the estate, hamiless from all damages by reason of such lien and the claims secured thereby. Upon confirmation of such sale, and assignment by the executor or administrator of such bond, without recourse, to the holder of the lien, the estate shall be discharged from the pay- ment of the debt secured by such lien."" «•' Pearson v. Kepner, 29 Ind. App. widow of a decedent may sue an 92 63 X. E. 38. administrator for failing to take the "^Burns' R. S. 1908, §§ 3046, 3047; bond required by this section when Clark V Clark, 132 Ind. 25, 31 N. E. she is injured by such failure. Spar- 461- Rowley v. Sanns. 141 Ind. 179, row v. Kelso, 92 Ind. 514. The fail- 40 X E 674; Lahr v. Ulner, 27 Ind. ure of the administrator to take the \pp 107 60 N E. 1009. bond required by this section does •^Trau'dt V. Hagerman. 27 Ind. not affect the liability of the pur- ■\pp 150, 60 N. E. 1011. chaser to pay the liens on the lands. " Burns' R. S. 1908, § 2867. The Massey v. Jerauld, 101 Ind. 270. ^36 INDIANA PROBATE LAW. § 225 By this statute an executor or administrator may sell the de- cedent's real estate subject to liens existing thereon, or the court may order the land sold to pay the liens; and where the sale is made to the lien-holder it amounts to an extinguishment of the lien.''° The court might, in the order, combine both objects, and where real estate is ordered to be sold to discharge the lien of judgments upon it the title relates back to the date of the oldest judgment.^^ Where nothing appears to the contrary, sales of land by execu- tors or administrators are made subject to all liens against such land. There is no warranty in such sales or in the conveyance usually made by an executor or administrator, and unless other- wise ordered by the court, they sell and convey the land subject to all incumbrances.'- Where taxes have accrued upon the land of a person before his death, they become a personal charge against him as well as a lien against the land ; and sucli taxes should be paid by the executor or administrator because they are debts against the estate. But the law does not make it the duty of an executor or administrator to pay taxes accruing on land after the death of the testator or intestate. As the lands descend di- rectly to the heir, he should pay the taxes accruing after the de- scent is cast." '"Foltz V. Peters, 16 Ind. 244; Boaz v. McChesney, 53 Ind. 193; Clarke v. Henshaw, 30 Ind. 144. Headrick v. Wisehart, 41 Ind. 87; When lands are sold to discharge Moody v. Shaw, 85 Ind. 88. The liens, all the proceeds must be ap- purchaser buys subject to all incum- plied on the liens if necessary to sat- brances except those for which the isfy the same. Ryker v. Vawter, 117 land is sold. Loudon v. Robertson, Ind. 425, 20 N. E. 294. Taxes ac- 5 Blackf. (Ind.) 276; Foltz v. Pe- cruing on the lands of a decedent ters, 16 Ind. 244; Massey v. Jerauld, before his death should be paid by 101 Ind. 270. The purchaser of real his administrator. Henderson v. estate at an administrator's sale takes Whitinger, 56 Ind. 131. The pur- the land subject to all incumbrances, chaser of lands will not be permitted unless the order of sale otherwise to show that it was verbally agreed direct, and the legal effect of the that he was not to pay the liens on contract cannot be contradicted by a the lands. Moody v. Shaw, 85 Ind. verbal contemporaneous agreement. ^8. ., Moody V. Shaw, 85 Ind. 88. " West V. Townsend, 12 Ind. 434. " Henderson v. Whitinger, 56 Ind. ^'Martin v. Beasley, 49 Ind. 280; 131; Boaz v. McChesney, 53 Ind. § 226 DISPOSITION OF REAL PROPERTY. 337 While the doctrine of caveat emptor is appHed to sales made by an executor or administrator, yet where the sale is void, or the title fails, the equitable doctrine that the purchaser may recover the amount paid from the judgment defendant, or be subrogated to the rights of the judgment creditor, is applied as in other judicial sales."'* A mechanic's lien against a decedent's land may be enforced against his heirs, but no personal judgment may be had against them.'^ As the lien attaches to the realty, and the proceedings to en- force it are in rem, and as the remedy would be very inadequate if the death of the owner defeated the lien, the equity of the statute requires that the lien should survive, and bind the property in the hands of the heirs.'" A proceeding to enforce such lien cannot be maintained against an administrator or executor alone. The lien-holder, however, may file a claim against the estate for the amount due him ; or, if the property is sold, discharged of his lien, the lien will attach to the fund. § 226. Mortgages on the real estate. — The lien of a mort- gage against a decedent's real estate cannot be divested by the sale of such land by the administrator." An executor or administra- tor must take cognizance of mortgages executed by the decedent 193; Moody v. Shaw, 85 Ind. 88. 293, 2S Am. Dec. Ill; Muir v. Berk- To a suit by an administrator de shire, 52 Ind. 149; Westerfield v. bonis non, on a promissory note WiUiams, 59 Ind. 221 ; Willson v. given for the purchase of land at an Brown, 82 Ind. 471 ; Short v. Sears, administrator's sale, an answer of 93 Ind. 505; Porter v. Jackson, 95 set-off for taxes paid on the land by Ind. 210, 48 Am. Rep. 704. the defendant, at the request of the •' McGrew v. McCarty, 78 Ind. 496. former administrator, is insufficient, '" Piter v. Ward, 8 Blackf. (Ind.) the mere promise of the administra- 252 ; Dobbs v. Enearl, 4 Wis. 471. tor being insufficient to bind the es- ^ McCallam v. Pleasants, 67 Ind. tate in the absence of facts showing 542. To divest the lien of a mort- the right to charge the estate, or that gage by an administrator's sale of the consideration for the promise land, the mortgagee must be made a arose prior to the intestate's death, party to the proceeding, and the Brown v. Forst, 95 Ind. 248. court must order the sale of the •'Muir V. Craig, 3 Blackf. (Ind.) land to discharge the lien. Where 22— Pro. L.\w. 338 INDIANA PROBATE LAW. § 226 in his lifetime." - And unless the property mortgaged be sold under the provisions of this statute for the express purpose of paying the mortgage, the lien of the mortgage is not released save upon the full payment of the mortgage debt.'" A mortgagee of an un- recorded mortgage is entitled to a lien for the amount of tlie mortgage debt on the money in the hands of the administrator arising from a sale of the mortgaged premises, althougli such sale was made by the administrator without knowledge of the mortgage. It is only subsequent purchasers and incumbrancers in good faith and for value who are protected against an unre- corded mortgage. As against all the world besides, the registry imparts no force or virtue whatever to the instrument. As against the mortgagor and the estate while it remains in his hands, the lien is as perfect without registry as with it. It is so, also, against his general creditors while he lives, and after his death no change is wrought in the rights of the mortgagee with respect to the other creditors by his decease. The administrator is his personal representative, and takes no better right than the intestate had. He, in fact, takes no estate whatever in the lands mortgaged, but a duty with reference thereto devolves upon him in the performance of his trust when he discovers that a sale of such lands will be necessary to satisfy the indebtedness. It is his duty to inform himself of the condition of the whole estate; but his negligence in making inquiries as to liens upon the real estate the mortgagee was not a party to the complaint, asks the foreclosure of proceeding to sell, and the court did his mortgage, and it is ordered that not order a sale to pay his mortgage, the mortgage be foreclosed as to part the lien of the mortgage was not di- of the real estate embraced therein, vested, and the purchaser took the and that the remainder be sold by the land subject to such lien, notwith- administrator discharged of liens, standing the administrator's assur- any deficiency in favor of the mort- ance to the contrary. Crum v. gagee to be paid by such administra- Meeks, 128 Ind. 360, 27 N. E. 722. tor. in its order of priority, upon the ^* Cole V. McMickle, 30 Ind. 94. further order of the court, no ques- '^ Clarke v. Henshaw, 30 Ind. 144. tion of priority as between the mort- Where, in a proceeding by an admin- gage and the debts for the payment istrator to sell real estate to pay of which the land is asked to be sold debts, which are not shown to be is adjudicated. Ryker v. Vawter, senior claims, a mortgagee, by cross- 117 Ind. 425, 20 N. E. 294. § 226 DISPOSITION OF REAL PROPERTY. 339 to be sold will not be permitted to profit one creditor at the ex- pense of another. The fact that the land is sold without notice of a mortgage thereon cannot be of avail to the general creditors who had no notice of such mortgage. They are not in a position to avail themselves of such want of notice, being neither purchasers nor incumbrancers. The mortgagee is entitled to the amount of his mortgage out of the proceeds of the mortgaged property against general creditors of the estate, even where such estate is insolvent.®" And where, by order of court, the land is ordered sold for the express purpose of paying off a mortgage lien thereon, the lien is transferred to the fund in the hands of the administrator arising from such sale, and as to that fund takes preference in payment, not only over general debts of the estate, but over the expenses of administration, funeral expenses and expenses of last illness.®^ To divest the lien of a mortgage, the mortgagee must be made a party to the proceedings by the administrator for the sale of the land, and the court must order the land sold to discharge the lien. Real estate incumbered by liens may be sold by an administrator in one of two ways : subject to the liens, or to discharge the liens. In the latter case the purchaser will take and hold the lands freed from the liens. ^- ^Kirkpatrick v. Caldwell, 32 Ind. "Beach v. Bell, 139 Ind. 167, 38 299; Perry v. Borton, 25 Ind. 274. X. E. 819; Crum v. Meeks, 128 Ind. One holding a mortgage executed by 360, 27 N. E. 722; Massey v. Jerauld, a decedent upon real estate, which Ind. 270; Martin v. Beasley, 49 Ind. an administrator is ordered to sell 280. A judgment obtained against a discharged of liens, is entitled, un- devisee of real estate, which is after- der Burns' R. S. 1908, § 2958, to ward sold by the administrator with have the entire proceeds of the sale the will annexed in pursuance of the applied to the payment of his mort- terms of the will, the transcript hav- gage debt, if so much is necessary, ing been properly filed, becomes a to the exclusion of claims for costs lien on the land, and follows the pro- of administration, funeral expenses ceeds of the sale of such land into and expenses of last sickness. Ryker the administrator's hands, binding it V. Vawter, 117 Ind. 425, 20 X. E. 294; to the same extent as it bound the Mayer v. Myers, 129 Ind. 366, 27 N. land. Koons v. Mellett, 121 Ind. 585, E. 740. 23 N. E. 95, 7 L. R. A. 231n. Such "Ryker v. Vawter, 117 Ind. 425, lien, however, is a general lien, and 20 N. E. 294. is subject to all the equities existing 340 INDIANA PROBATE LAW. § 227 § 227. Mortgagee's right to file claim. — Prior to the revi- sion of 1 88 1, claims against a decedent's estate secured by mort- gage, and judgments against the decedent, were not required to be filed against the estate; and when amortgagee went outside of the mortgaged property to obtain payment of his claim, such claim had no preference over the general debts of the estate. And should he fail to make the full amount of the debt out of the mortgaged property, he was permitted to file his claim against the estate for the balance due, which claim, if allowed, was paid in full or pro rata, as were other general debts of the estate.^^ The statute now requires that such claims shall be filed against the estate as are other claims, and if found correct their payment is provided for in preference to the general debts of the estate. As the personal property of the estate is the primary fund for the payment of all the debts of the decedent, the holder of a note secured by a mortgage upon the decedent's real estate may file his note as a claim against the estate, and as such claimant is en- titled to a pro rata dividend out of the assets of the estate, and the fact that he received such pro rata share and had notice of the sale of the real estate upon which his mortgage was a lien, does not prevent him foreclosing his mortgage for any balance due him thereon, unless the land had been sold free of liens. ^* But if a lien-holder first pursues his remedy against the land and fails to make all the amount due him, the balance of his claim has no preference over those of the general creditors. It is no lien upon the general assets of the estate.^^ Where either real or personal property upon which there is an outstanding mortgage is converted into money, the rights of the mortgagee continue unaltered, and the court should direct the in favor of the estate represented by *^ Clarke v. Henshaw, 30 Ind. 144. the administrator, and confers on -° Kimmell v. Burns, 84 Ind. 370 ; the judgment no greater rights as Sparrow v. Kelso, 92 .Ind. 514; La against the estate than those pos- Plante v. Convery, 98 Ind. 499; Lord sessed by the legatee. v. Wilcox, 99 Ind. 491; Ryker v. *'La Plante v. Convery, 98 Ind. Vawter, 117 Ind. 425, 20 N. E. 294. 499. § 228 DISPOSITION OF REAL PROPERTY. 34I application of the money according to the rights of the parties as they existed previous to the alteration of the estate.^® The heirs or devisees do not take the property free from liens where the lien-holder fails to file his claim against the estate. Such land remains subject to the lien, even after final settlement of the estate." In an action against the executor or administrator and the heirs of a decedent to foreclose a mortgage upon the lands of the decedent it is not necessary for the complaint to show that a claim for the mortgage debt had been filed against the estate. If such claim had not been filed that fact is matter of defense. For it may be assumed that the court would not have jurisdiction to foreclose a mortgage or enforce the lien of one before the final settlement of the estate, even though more than one year had elapsed after the death of the decedent, until a claim therefor had been filed against the estate.®^ § 228. Proceedings to enforce lien suspended. — No pro- ceedings shall be instituted before the end of one year from the death of the decedent, to enforce the lien of any judgment against the decedent in his lifetime, upon real estate or any decree spe- cially directing the sale of such real estate, to discharge any lien or liability created or suffered by the decedent. Nor shall any suit be brought before that time against the heirs or devisees of the deceased to foreclose any mortgage or other lien thereon, for "^Gimbel v. Stolte, 59 Ind. 446; As- is little room for doubt that it must tor V. Miller, 2 Paige (N. Y.) 68. be filed against the estate before set- *' Beach v. Bell, 139 Ind. 167, 38 N. tlement or be barred, but we find no E. 819. In this case, the court says : good purpose nor expressed or im- "Under all the provisions cited, there plied intention, in any of the statu- is every reason for holding that a tory provisions cited, to deprive one mortgage-lien must be filed within of his mortgage, judgment, or other the year of administration, or that a lien on specific real estate, where he judgment-lien shall be so filed or be does not care to pursue the personal barred, as there is for holding that assets of the estate and participate the lien in this case should have been with general creditors." so filed. If the claim which is secured "'Noerr v. Schmidt, 151 Ind. 579, by the lien is to participate in the 51 N. E. 332. personal assets of the estate, there 342 INDIANA PROBATE LAW. § 229 the payment of which his personal estate shall be liable ; and in case of suit to foreclose any mortgage or other lien thereon, the executor or administrator shall be made a party defendant there- to; and if the executor or administrator shall be diligently prose- cuting his proceedings to sell the real estate of the deceased for the purpose of making assets to discharge such liens, further pro- ceedings for the sale thereof, bv the holders of liens thereon, shall be stayed upon the application of the executor or administrator. This section shall not apply to cases where, before the end of the year, the real estate shall have been sold by the executor or ad- ministrator subject to the liens thereon, nor to mortgages and judgments in favor of the state. ^® In case of the death of any judgment debtor, the heirs, de- visees, or legatees of such debtor, or the tenant of real property owned by him and affected by the judgment, and the personal representatives of the decedent, may, after the expiration of one year from the time of granting letters testamentary or of admin- istration upon the estate of the decedent, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respectively.^" § 229. Same — Statute construed. — Before this section of the statute was amended by the act of 1883, "no proceeding could be instituted before the end of one year from the issuing of let- ters testamentary or of administration," but as the mortgagee might be delayed and kept from his remedy by a neglect to have an administrator appointed, the statute was so amended as to date the year from the date of the death of the decedent. It seems to be the policy of the law that heirs shall not be compelled to litigate about the debts of their ancestor until after the expira- tion of a year from his death. The prohibition in this statute relative to the foreclosure of mortgages applies only to such mortgages, for the payment of which the personal estate of the decedent will be liable, and the executor or administrator is a necessary party to the foreclosure of such mortgage because he is the representative of the personal estate. When the action is '"Burns' R. S. 1908, § 2847. ""Burns' R. S. 1908, § 651. § 230 DISPOSITION OF REAL PROPERTY. 343 merely to foreclose a mortgage, or other lien, in which no judg- ment against the personal estate is sought, or can be rendered, and mortgages and judgments in favor of the state, the prohibi- tion of the statute does not apply, and such actions may be brought at any time, and the heirs and devisees of a decedent are proper and necessary parties to such an action; but his executor or administrator, while not, perhaps, necessary parties, should also be joined as defendants. As a rule the heir of a deceased mortgagor, and not his personal representative, is the proper party defendant in an action to foreclose such mortgage, but the statute now requires that both be made parties defendant. In such foreclosure suit the heirs are necessary parties because the equity of redemption descends to them, and the executor or ad- ministrator is properly made a party because he may have paid the mortgage, or may have personal property with which to pay it. Where the complaint for the foreclosure of a mortgage, or other lien against a decedent's real estate, shows that such mort- gage, or other lien, is one for the payment of which the personal estate of such decedent will be liable, and also shows that one year has not elapsed since the death of the decedent, there is no cause of action. This statute declares that such suits shall not exist, and a demurrer to such complaint for the want of sufficient facts should be sustained.^^ § 230. Bond to secure payment of lien after sale. — An ex- ecutor or administrator, in selling real estate subject to liens, should take a bond from the purchaser of such real estate to secure the payment of the liens. And one who purchases real *W complaint to enforce a mort- the debts of their ancestors, until gage or lien against the lands of a after the expiration of a year from decedent must show that the right the issuing of letters testamentary or of foreclosure exists under the pro- of administration and of notice visions of this section. Lovering v. thereof. King. 97 Ind. 130. Home &c. Bank v. John v. Hunt, 1 Blackf. (Ind.) Peoples &c. Bank, — Ind. App. — 324, 12 Am. Dec. 245; Slaughter v. 96 X. E. 710. Taking these two sec- Foust, 4 Blackf. (Ind.) 379; New- tions of the statute, it seems to be kirk v. Burson, 21 Ind. 129; Lover- the policy of the law that heirs shall ing v. King, 97 Ind. 130. not be compelled to litigate about 344 INDIANA PROBATE LAW. § 23 1 estate at an executor's or administrator's sale, subject to liens, the amount of which is deducted from the purchase price of the land, assumes the payment of such liens, whether it is so stated in his deed of conveyance for the land, or whether a bond is taken from him therefor or not. Such assumption of payment of liens need not be in writing to bind a grantee ; and where a con- veyance is made subject to liens, the grantee is bound for the payment of such incumbrances. His agreement to pay the liens, though not in writing, is enforcible. The duty of taking a bond from the purchaser, imposed by this statute upon an executor or administrator, is an imperative one ; and for a breach of this duty he is amenable to any one who has an interest in the estate. For his own protection an executor or administrator should require a bond. In an action by one interested in an estate, against the executor or administrator for a failure to take a bond of the purchaser, it must appear that the party complaining has suf- fered damage by such failure. The failure to take such bond does not divest the liens or affect their validity.®^ § 231. As to mortgage by an heir. — Where an heir exe- cutes a mortgage upon real estate inherited by him, and such real estate is afterwards sold by the administrator of the ancestor for the payment of debts, the mortgagee of such heir is entitled to the excess, if any, arising from the sale of such heir's part, and may, by foreclosure before the estate is settled, obtain an order of court against the administrator requiring him, after final set- tlement of the estate, to pay such excess upon the mortgage, and the administrator cannot set off against this excess a sum the "= Sparrow v. Kelso, 92 Ind. 514; charge the liens in the order of their State, ex rel, v. Kelso, 94 Ind. 587; priority, and thereby free the land Massey v. Jerauld, 101 Ind. 270. In from all encumbrances; but the pur- the last case cited, the court says, chaser bought it subject to whatever "The land was sold for the payment liens were then upon it. The fact of the debts generally, subject to the that the administrator took no bond liens named. The deed is nothing from the purchaser to pay off the more than a quitclaim deed, and the liens cannot divest the liens or affect land remained subject to all the then their validity." existing liens. It was not sold to dis- § 231 DISPOSITION OF REAL PROPERTY. 345 mortgagor may owe him or the estate. The mortgagee has a hen upon such money superior to any claim of the administrator.'*^ While this position seems to be in harmony with the weight of authority,^* yet our Supreme Court, by a majority opinion, has modified and in practical effect overruled the above doctrine. In one case the court says : "It frequently happens that the assets of an estate consist largely of debts due from the heirs to the ancestor. If it were possible for an heir, immediately upon the death of his ancestor, to convey or encumber his interest in the real estate, so that after paying the debts of the ancestor his grantee or mortgagee might participate in the surplus equally w^th other heirs who had received or who owed the ancestor nothing, the most manifest injustice and inequality would re- sult." And again, "when the land is converted into money by operation of law, it becomes money assets in the hands of the administrator, and that is subject to all the incidents of other as- sets, regardless of the source from which they arise. For certain purposes the administration and distribution money thus acquired may be located as having the qualities and as the representative of the real estate, but it is, nevertheless, money which has come into the hands of the administrator by operation of law in the course of administering the estate. Any procedure which the heir or his grantee or assignee may institute to get it out of the administrator's hands brings into operation and makes available to the latter any right of set-ofT, or to retain it as against any legitimate debt owing by the heir to the estate through whom he claims as assignee. The claim of the assignee is not a claim to an interest in land, but it is a claim to an interest in the assets of the estate ; whatever interest he has is an interest in the estate, and he takes that interest precisely as his assignor held it."^"* "Ball V. Green, 90 Ind. 75; Camp- (Tenn.) 245; Hancock v. Hubbard, bell V. Martin, 87 Ind. 577. 19 Pick. (Mass.) 167; Towles v. ^La Foy v. La Foy, 43 N. J. Eq. Towles, 1 Head (Tenn.) 600; Strong 206, 10 Atl. 266, 3 Am. St. 302; v. Bass, 35 Pa. St. 333, 2 Woerner Smith V. Kearney, 2 Barb. Ch. (N. Law Admr., § 564. Y.) 533; Sartor v. Beatv^ 25 S. Car. ''^ Fiscus v. Moore, 121 Ind. 547, 293 ; Procter v. Newhall, 17 Mass. 23 N. E. 362, 7 L. R. A. 235 ; Koons 81 ; ' Mann v. Mann, 12 Heisk. v. Mellett, 121 Ind. 585, 23 N. E. 95, 346 INDIANA PROBATE LAW. § 232 § 232. The sale, how made, etc. — The order of sale must precede the sale, and should specify how and upon what terms the sale shall be made; and the executor or administrator, in making the sale, should follow the order and the provisions of the statute authorizing such sale.'"' He has no power to vary the order of sale as to time, terms or conditions. If the sale is or- dered at public auction with notice it cannot be made at private vendue without notice, and if the order directs a sale for cash the administrator cannot sell on credit, nor can he sell more land than is specified in the order. '^^ The statute provides that the court ordering the sale shall specify the terms of sale, but no credits shall be directed to be given for a longer period than eighteen months, except that when the appraisement of the real estate is over five thousand dollars, a credit may be given for a period of not more than three years. If it appear to the court that a private sale of the real estate would be advantageous to the estate of the decedent the court may so order, and shall in such case prescribe in the order the notice to be given of the sale: Provided, That if the appraised value of the real estate ordered to be sold shall not exceed one thousand dollars, the court may order such sale without giving notice thereof.^^ But every such sale of real estate shall be at public auction unless otherwise provided in the order of sale. Lands shall not be sold at public vendue for less than two-thirds of their appraised value, unless ordered to be sold subject to liens; in which case, they shall not be sold for less than two- thirds of the appraised value after deducting the liens. Sales of land at private vendue shall not be for less than their appraised value, except in cases of sales subject to liens; when the sale shall 7 L. R. A. 231n; Nelson v. Murfee, ''Richards v. Adamson, 43 Iowa 69 Ala. 598. 248; Fambro v. Gantt, 12 Ala. 298; ^ Clark V. Hillis, 134 Ind. 421, 34 Cruikshank v. Luttrell, 67 Ala. 318; N. E. 13; Stuart 'v. Allen, 16 Cal. Wakefield v. Campbell, 20 Me. 393, 473, 76 Am. Dec. 551; Herrick v. Z7 Am. Dec. 60n; Wells v. Mills, 22 Grow, 5 Wend. (N. Y.) 579; Fil- Tex. 302. more v. Reithman, 6 Colo. 120. '' Burns' R. S. 1908, § 2868. § 232 DISPOSITION OF REAL PROPERTY, 347 not be for less than the appraised value after deducting the amount of the liens.'"' A violation of the order of sale or of the provisions of the statute in any material respect will render the sale, if not abso- lutely void, at least voidable, and the executor or administrator guilty of such violation would be liable on his bond to any person injured thereby/ The sale must be made personally by the executor or adminis- trator. There is no authority given the court to appoint a com- missioner to make such sale, and if one is appointed a sale made by him is void, and the appointment being without authority of law, a bond given by such commissioner is void, and is not en- forcible even as a common law obligation." The executor or administrator has no discretion under the or- der of sale except to secure the highest possible price. It is his duty to follow the provisions of the order of sale strictly. He has no power to change or vary the terms of the order under which he acts, and his statements and representations made at the time of the sale do not bind the estate only as to such matters as are prescribed in the order of sale.^ '= Burns' R. S. 1908, § 2871. sold. Duncan v. Gainey, 108 Ind 'Dresel v. Jordan, 104 Mass. 407; 579, 9 N. E. 470. Lands which re- Heath V. Layne, 62 Tex. 686; James vert to the donor, are chargeable with V. Faulk, 54 Ala. 184; Logan v. Gig- the debts of the donee and may be ley, 9 Ga. 114. sold by his administrator. Duncan v. If an administrator receives any- Gaine}', 108 Ind. 579, 9 N. E. 470. Ir- thing but money in payment for land regularities in a sale will not avoid sold, and does not account for the the same where the purchase-money purchase-money, the purchaser will is paid and properly applied. Dequin- be liable for the payment of the pur- dre v. Williams, 31 Ind. 444. chase-price in money. Chandler v. " State v. Younts, 89 Ind. 313 Schoonover, 14 Ind. 324. Whisnand v. Small, 65 Ind. 120 Failure to comply strictly with the State v. McLaughlin, 77 Ind. 335 statute will not render the proceed- Caffrey v. Dudgeon, 38 Ind. 512, 10 ings subject to collateral attack. Am. Rep. 126; Ham v. Greve, 41 Spaulding v. Baldwin, 31 Ind. 376. Ind. 531. If the administrator without prop- ^ Dunlap v. Robinson, 12 Ohio St. er authority sells the real estate of 530 ; Randolph's Appeal, 5 Pa. St. the decedent the purchaser obtains 242; Cruikshank v. Luttrell, 67 Ala. no title and the lands may be again 318; Selb v. Montague, 102 111. 446. 348 INDIANA PROBATE LAW. § 232 The fact that the sale must be made by the executor or admin- istrator personally does not imply that actual crying of the sale and the selling must be done by him individually. He may act as his own auctioneer/ or such executor or administrator has the right to employ an auctioneer to cry a sale for him, and such auctioneer has the right, at such sale, to bid off property for him- self. But if the circumstances should be such that he ought to be held as trustee, his purchase may, in a direct proceeding, be set aside and the property re-offered for sale, but this must be done before such property has passed into the hands of a bona fide purchaser without notice. Such sale is impervious to a collateral attack.^ If an auctioneer is employed he is the mere mouthpiece of the executor or administrator making the sale, and all his acts and announcements are considered as those of his employer.^ If the purchaser should fail to comply with the terms of the sale the executor or administrator may re-sell the land, and if, upon such second sale, it fails to bring as much as at the first sale, the first purchaser will be liable for the difference.'' Unless the order is to sell free from liens the purchaser will take the land subject to all liens, mortgages, or titles superior to 'Lafiton V. Doiron, 12 La. Ann. 69 Am. Dec. 362n; Wylly v. Gazan, 164. 69 Ga. 506. Corn standing in the 'Hawkins v. Ragan, 20 Ind. 193; field was sold at administrator's sale. Rice V. Cleghorn, 21 Ind. 80; Kel- It was to be gathered by the admin- logg V. Wilson, 89 111. 357. istrator within a reasonable time. * Hawkins v. Ragan, 20 Ind. 193 ; When it was gathered and stored the Vandever v. Baker, 13 Pa. St. 121 ; purchaser refused to receive it. The Hicks V. Willis, 41 N. J. Eq. 515, 7 corn, by order of court, was after- Atl. 507. False representations made wards sold by the administrator at by an administrator on the sale of private sale for a less sum than the lands as to incumbrances thereon will first purchaser bid for it and sued not be a defense to an action for the such purchaser for the difference, purchase-money. Riley v. Kepler, 94 Held, that on the trial the proceed- Ind. 308; West v. Wright, 98 Ind. ings relative to the second sale were 335. admissible in evidence; that the con- ^ Meek v. Spencer, 8 Ind. 118; tract with the first purchaser was not Wanzer v. Eldridge, 33 N. J. Eq. thereby abandoned. Meek v. Spen- 511; Mount v. Brown, 33 Miss. 566, cer, 8 Ind. 118. § 233 DISPOSITION OF REAL PROPERTY. 349 that of the deceased debtor. Such purchaser can acquire only the title and interest the decedent had in the land at his death.^ So far as taxes against the real estate are concerned, the pur- chaser takes the land subject to those which have accrued since the death of the owner, as the estate can be only charged with those which accrued prior to his death.'' In sales by executors or administrators there is no warranty, either express or implied, and such officer is not, in general, bound to make known defects of title within his own knowledge, for the law imposes upon the purchaser the duty of exercising his own judgment in all reasonable ways as to that which he is buying. ^'^ The purchaser is bound, however, only by what the records show. He is not affected by secret defects. For this reason his title would have priority over an unrecorded deed or mortgage made by the decedent, nor would it be affected by secret trust of which the purchaser had no notice. ^^ § 233. Sale may be on credit. — Upon the sale an executor or administrator is required to take of the purchaser notes with personal security, and upon the confirmation of the sale by the court and the execution and delivery of a deed to such purchaser, a mortgage upon the real estate must also be taken from such purchaser as an additional security, but this additional security does not change the character of the notes given, nor lessen the liability of the sureties thereon. Upon such sale being made, such executor or administrator shall take from the purchaser promissory notes for the purchase- money, with sufficient surety, waiving recourse to the valuation or appraisement laws of this state, and shall also execute to such purchaser a certificate of the sale of such real estate. Such notes shall be drawn according to the terms of the sale prescribed by ' Woerner Am. Law Admin., § 482. " Banks v. Ammon, 27 Pa. St. 'Henderson v. Whitinger, 56 Ind. 172; Love v. Berry, 22 Tex. 371; 13 L Barto v. Tomkins County Nat. Bank, 'nValton V. Reager, 20 Tex. 103; 15 Hun (N. Y.) 11; Emerson v. Jones V. Warnock, 67 Ga. 484; Til- Ross. 17 Fla. 122. ley V. Bridges, 105 111. ZZ6; Riley v. Kepler, 94 Ind. 308. 350 INDIANA PROBATE LAW. § 233 the court and shall bear six per cent, interest from date. If the real estate be sold subject to liens the purchaser shall execute bond as hereinbefore provided.^" In receiving payment on the sale notes, given pursuant to this statute, an executor or administrator is not authorized to receive anything but money in payment therefor. He has no power to apply the proceeds of such sale in discharge of his own individual debts, because the exercise of such power would be inconsistent with his duties and would be against public policy. So where the purchaser of land at a sale of a decedent's real estate by the ad- ministrator credits the purchase-money of such land upon a note due him from the administrator personally, it is no payment, and the sale may be set aside or the purchase-money recovered." A creditor of the estate, who becomes a purchaser at a sale made by an executor or administrator, cannot retain from the purchase-money sufficient to satisfy the claim he holds against the estate.'* But if the purchaser should be a holder of a first mortgage lien upon the land bought by him, and the land had been ordered sold, discharged from the lien, he would perhaps be entitled to retain from the purchase-money sufficient to satisfy his mortgage.'^ If the order has been made to sell on credit the executor or administrator would, nevertheless, be allowed to accept all cash upon the sale.'*' Before making a deed it is the duty of the executor or admin- '= Burns' R. S. 1908, § 2873. If 524; Bevis v. Heflin, 63 Ind. 129; anything but money is received in Walker v. Hill, 111 Ind. 223, 12 N. payment, and the purchase-money is E. 387; Bisco v. Moore, 12 Ark. 11; not accounted for, the purchaser will Alvord v. Marsh, 12 Allen (Mass.) be required to pay the purchase-price 603. in money. Chandler v. Schoonover, " Rindge v. Oliphint, 62 Tex. 682 ; 14 Ind. 324. Irregularities in a sale Brandon v. Allison, 66 N. Car. 532; will not avoid the same where the Eldredge v. Bell, 64 Iowa 125, 19 N. purchase-money is paid and prop- W. 879. erly applied. Dequindre v. Williams, "^ Succession of Triche, 29 La. 31 Ind. 444. Ann. 384. "Chandler v. Schoonover, 14 Ind. '" Gvvynn v. Dorsey, 4 Gill & J. 324; Hancock v. Morgan, 34 Ind. (Md.) 453. § 234 DISPOSITION OF REAL PROPERTY. 35 1 istrator to collect the purchase-money or such portion of it as the terms of the sale require to be paid. In a suit upon a note given for the purchase-price of property bought at an executor's or administrator's sale, the purchaser of such property cannot set off a debt due him from the decedent in his lifetime. The principle of mutuality in such cases requires that the debts should not only be due to and from the same per- sons, but in the same capacity. The note was not executed to the decedent in his lifetime, but to his administrator, for property purchased of the latter after the death of his decedent ; while the set-off is for a debt of the decedent in his lifetime. To allow a set-off in such cases would disturb the due course of administra- tion and distribution of estates." § 234. Notice of the sale to be given. — In case of sale of real estate at public auction, the executor or administrator shall give four weeks' notice of the time, place, and terms of sale, by publication in some public newspaper, if any, published in the county in which the real estate is situate, and by posting up no- tices thereof in at least five public places in such county, three of which shall be in each township in which real estate to be sold may be situate. If the real estate or any part thereof shall be ordered to be sold subject to any lien, such fact and the particu- lars of the lien shall be stated in the notice.^^ The rule of law seems to be that where notice is required by statute, and the record of the proceedings in a court of general jurisdiction, while silent upon the question as to whether such notice was given or not, discloses nothing inconsistent with the fact of such notice having been given, in the absence of proof to the contraiy, notice will be presumed to have been properly given. ^® Where the appraised value of the real estate is such as to re- quire it to be sold at public auction, notice must be given, regard- '■Dayhuff v. Dayhufif, 27 Ind. 158; "Horner v. Doe, 1 Ind. 130, 48 Harte v. Houchin, 50 Ind. 327 ; Wei- Am. Dec. 355 ; Doe v. Harvey, 3 Ind. born V. Coon, 57 Ind. 270. 104; Gerrard v. Johnson, 12 Ind. 636. " Burns' R. S. 1908, § 2872. 352 INDIANA PROBATE LAW. § 234 less of whether the order directing the sale requires notice or not. To give notice is a duty the statute imposes on the adminis- trator.'*' A sale without notice, when notice is required, is perhaps void, though after report and confirmation and the execution and de- livery of the deed, in the absence of anything in the record nega- tiving the fact of notice, the sale will be upheld under the rule that notice will be presumed.-^ If the court should in the order direct notice to be published in two newspapers, a publication in one will be held sufficient."" And the publication must be continuous in the same newspaper for the entire time required by the statute."^ The affidavit making proof of the posting of the notices re- quired by the statute should designate the places where such notices were posted, and the report of the sale should show that such places were public places.'* A copy of the notice should be attached to the affidavit.^^ If the value of the land, according to the appraisement, does not exceed one thousand dollars, the court in its discretion may order the sale to be made without notice.'" When lands are ordered sold at private sale it is not necessary that the notice of such sale specify the time and place of the sale." A misdescription in the notice of the premises to be sold will not affect the sale nor release a bidder from complying with his bid if such bidder was not misled thereby.'* A misstatement in =" Lawrence's Appeal, 49 Conn. 411; "Hugo v. Miller, 50 Minn. 105, 52 Clark V. Hillis, 134 Ind. 421, 34 N. X. W. 381; Sowards v. Pritchett, 2>7 E. 13. 111. 517. '' Saltonstall v. Riley, 28 Ala. 164, ^= Brown v. Redwyne, 16 Ga. 67. 65 Am. Dec. 334 ; Clark v. Hillis, 134 =° Maxwell v. Campbell, 45 Ind. Ind. 421, 34 N. E. 13; Gerrard v. 360; Rice v. Cleghorn, 21 Ind. 80. Johnson, 12 Ind. 636 ; Schaale v. "' Rice v. Cleghorn, 21 Ind. 80. Wasey, 70 Mich. 414, 38 N. W. 317; ^ Wylly v. Gazan, 69 Ga. 506; Sue- Doe V. Harvey, 3 Ind. 104. cession of Wadsworth, 2 La. Ann. ^ Sankey's Appeal' 55 Pa. St. 491. 966. ^ Townsend v. Tallant, Zo Cal. 45, 91 Am. Dec. 617. § 235 DISPOSITION OF REAL PROPERTY. 353 the notice of the day of sale or the naming of an impossible day will render the sale void.-*^ § 235. Representations by an administrator or executor. — The warranties or representations of an executor or adminis- trator made at a sale of decedent's real estate are not binding upon the estate. An executor or administrator cannot, as such, commit a tort; if he commits a tort, he commits it as an indi- vidual, and is liable as an individual and not in his official capacity. Fraudulent representations by an executor or adminis- trator made at a sale of a decedent's real estate for the purpose of inducing one to purchase, may not be pleaded in answer by such purchaser to an action by the executor or administrator on the notes given for the purchase-money of such real estate. If false representations were made by the executor or administrator, it was his individual tort for which he alone personally can be held responsible.^'^ But such representations as he may make which are in harmony with the order of sale will be held binding upon the estate.^^ If the executor or administrator employ by-bidders to fraudulently increase the price of the land at the sale, the purchaser upon the proper showing made will be relieved of his bid.^- Such means taints the transaction with fraud. It is said in one case: "To screw up the price, as it has been aptly termed, by secret machinery, can be no less a fraud, and a sham bidder can be used for no other purpose."^^ If not contrary to the order of sale or some statute, the admin- istrator or executor may agree with the purchaser about some things, and if for the interest of the estate in securing a better ^ Wellman v. Lawrence, 15 Mass. fense to an action for the purchase- 326. money. West v. Wright, 98 Ind. 335. '"Riley v. Kepler, 94 Ind. 308; '' Dunlap v. Robinson, 12 Ohio St. Rose V. Cash, 58 Ind. 278; Hankins 530; Giles v. Moore, 4 Gray (Mass.) V. Kimball, 57 Ind. 42; Rodman v. 600; Selb v. Montague, 102 111. 446. Rodman, 54 Ind. 444; Fritz v. Mc- " De Haven's Appeal, 106 Pa. St. Gill, 31 Minn. 536, 18 N. W. 753. 612. Fraudulent representations made by '^ Pennock's Appeal, 14 Pa. St. an administrator on the sale of land 446, 53 Am. Dec. 561. as to incumbrances constitute no de- 23— Pro. Law. 354 INDIANA PROBATE LAW. § 236 price for the land courts will uphold such arrangements. If no other provision has been made he can agree to pay off a mort- gage against the land offered for sale ; so he may agree to pay taxes which have accrued since the death of the decedent ; or he may agree with the purchaser and permit him to discharge a note given for the property purchased by paying off creditors of the estate.^* But as a rule sales of real estate made by an executor or admin- istrator are governed strictly by the power under which they act, because they have no right to sell except under special authority, and whatever they do in excess of such authority is either void or can only bind them personally. The principle of caveat emptor is strictly applied. ^° ^ 236. Purchase by executor or administrator. — If an ex- ecutor or administrator sell the lands of his decedent, as such executor or administrator, to himself as an individual, either directly or indirectly through a third person, he cannot hold the title thereto against the heirs of the deceased if they take proper steps to avoid it. The question in such case is not one of fraud in fact, or actual fraud; such a sale is itself a fraud in law, or constructive fraud, which the law will not uphold, whatever may have been the motive in making it. The principle is founded in the doctrine of trusts, that a trustee, as a trustee, cannot sell the property he holds in trust to himself as an individual, either di- rectly or indirectly, and profit thereby as against the cestui que trust.^*" The rule that a purchase by a trustee shall inure to the benefit of the cestui que trust, if the latter so elects, is not intended to be remedial of actual injur}^, but to prevent the possibility of wrong, and it is wholly immaterial that the conduct of the former may " Woerner Am. Law Admin., § 477. lands at sales made by him, the heirs ^ Woerner Am. Law Admin., § 484. may have the sale set aside on pay- ^* Morgan v. Wattles, 69 Ind. 260 ; ment of the purchase-money and the Nelson v. Hayner, 66 111. 487; Val- value of the improvements made by entine v. Wysor, 123 Ind. 47, 23 N. the purchaser. Shaw v. Swift, 1 Ind. E. 1076, 7 L. R. A. 788n. If the ex- 565; Doe v. Harvey, 3 Ind. 104; Pot- ecutor or administrator purchases ter v. Smith, 36 Ind. 231. § 236 DISPOSITION OF REAL PROPERTY. 355; have been innocent and free from any imputation of fraud or wrong." Speaking of such sales, Judge Story says : "In all cases where a purchase has been made by a trustee on his own account, of the estate of his cestui que trust, it is the option of the cestui que trust to set the sale aside, whether bona fide made or not. How- ever innocent the purchase may be in a given case, it is poisonous in its consequences. The cestui que trust is not bound to prove, nor is the court bound to decide, that the trustee has made a bargain advantageous to himself. The fact may be so, and yet the party not have it in his power distinctly and clearly to show it. There may be fraud and yet the party not be able to show it. It is to guard against this uncertainty and hazard of abuse, and to remove the trustee from temptation, that the rule does and will permit the cestui que trust to come at his own option, and, with- out showing essential injury, to insist upon the experiment of another sale."^* If an administrator, at his own foreclosure sale against real estate of his intestate, bids off the land and has the title conveyed to the heirs of such intestate, such sale will not be void and the heirs cannot afterwards complain that such sale was made by the administrator without an order of the proper court. Such pur- chase could not be made by the administrator for his owrt benefit.^'^ In the absence of fraud the wife of an executor may purchase land at a sale made by her husband in his fiduciary character; and if such purchase is made in good faith it will be upheld.*" Knowledge by the heirs that the administrator or executor made such purchase of the decedent's real estate, and their allow- ^ Wilson V. Brookshire, 126 Ind. the lands resold. Martin v. Wyn- 497, 25 N. E. 131, 9 L. R. A. 792n. coop, 12 Ind. 266, 74 Am. Dec. 209. ^'1 Story's Equity, § 323; Reed v. ^Hoover v. Malen, 83 Ind. 195; Aubrey, 91 Ga. 435, 17 S. E. 1022, 44 Murphy v. Teter, 56 Ind. 545 ; Martin Am. St'. 49 ; Caldwell v. Caldwell, 45 v. Wyncoop, 12 Ind. 266, 74 Am. Dec. Ohio St. 512. 15 N. E. 297; Bland 209; Hunsucker v. Smith, 49 Ind. 114. V. Fleeman, 58 Ark. 84, 23 S. W. 4. *" Crawford v. Gray, 131 Ind. 53, On application to set the sale aside 30 N. E. 885. in such a case, the court may order 356 INDIANA PROBATE LAW. § 236 ing him, without objection, to take possession thereof, and make valuable improvements thereon, does not estop them from bring- ing an action to set aside such sale, and the executor or adminis- trator can make no valid defense to such action, but must be satisfied with a repayment of the money he has invested in such purchase, with interest, and money expended in making perma- nent and valuable improvements on such real estate after a resale of the property.*^ The rule applies not only as to executors and administrators themselves, but extends to all persons intrusted with the re- sponsibility for and direction of such sales, and imposes upon them the duty of seeing that the property is sold to the best ad- vantage and that no occasion is given to charge collusion or un- fairness in the sale. Hence attorneys who represent executors and administrators in the settlement of estates cannot be per- mitted to buy at sales made by their clients.*- The rule, however, does not preclude the administrator or executor, from afterwards buying from the purchaser if there was no understanding at the time of the sale by such officer that he should have an interest in the purchase. But such a subse- quent purchase, if made by the administrator soon after the sale by him, for the same consideration, or a mere nominal considera- tion is enough to arouse suspicion, and if timely steps are taken by those interested, could be avoided."^ " Potter V. Smith, 36 Ind. 231 ; the sale of said real estate, and that, Shepherd v. Fisher, 17 Ind. 229; Doe when sold, said real estate was pur- V. Harvey, 3 Ind. 104 ; Shaw v. Swift, chased by one Robert Graham, the 1 Ind. 565. The heirs are the only record was sufficient to put subse- persons who can make objections quent purchasers on inquiry, and was when the executor or administrator constructive notice of the illegality becomes the purchaser of the lands, of the sale, said Robert Graham be- Carter v. Lee, 51 Ind. 292; Murphy ing a member of the said firm of V. Teter, 56 Ind. 545. • O'Brien & Graham. Fisher v. Bush, *'' Where an action was brought to 133 Ind. 315, 32 N. E. 924. set aside an administrator's sale of "Morgan v. Wattles, 69 Ind. 260; real estate as void, and the record Mitchell v. McMullen, 59 Mo. 252; shows that the firm of O'Brien & Caldwell v. Caldwell, 45 Ohio St. Graham, acting as attorneys for said 512, 15 N. E. 297. administrator, procured an order for § 237 DISPOSITION OF REAL PROPERTY. 357 One who purchases land in good faith from an administrator, who was indirectly a purchaser at his own sale, is protected in his own title if he had no notice;" but such vendee is not protected as an innocent purchaser if he acquires notice at any time before paying the purchase-money.*^ The mere fact that the purchaser conveys to the administrator a month after the sale for an increased consideration is not of itself sufficient to constitute fraud.*® § 237. Such sale void or voidable, limitation, resale, etc. — The question whether a sale of a decedent's property to himself by an executor or administrator is void or merely voidable is one which depends to a large extent upon the facts recited in the record. There is, it is true, a line of decisions in this state which hold that such purchase by an executor or administrator at his own sale is void." While this statement of the law may be lit- erally true where the record affirmatively shows a sale by a trus- tee, executor or administrator to himself, yet where such fact does not affirmatively appear from the record, but on the contrary the record shows a sale to one who was not disciualified from purchasing, although the executor, administrator or trustee was, in fact, the real purchaser, the sale would not be void but only voidable.*^ "Otis V. Kennedy, 107 Mich. 312, self, such sale is not void, and the 65 N. W. 219. purchaser is entitled to the rents. *" Mackey v. Bowles, 98 Ga. 730, 25 :\lurphy v. Teeter, 56 Ind. 545. Such S. E. 834. purchase would be voidable at the in- '" Louden v. IMartindale, 109 Mich, stance of those interested in the es- 235, 67 N. W. 133. tate. "Valentine v. Wysor, 123 Ind. 47, ^" Earle v. Earle. 91 Ind. 27; Com- 23 N. E. 1076, 7 L. R. A. 788n; Mar- egj-s v. Emerick, 134 Ind. 148, 33 N. tin v. Wyncoop, 12 Ind. 266, 74 Am. E. 899, 39 Am. St. 245; Perry on Dec. 209; Hunsucker v. Smith, 49 Trusts, § 224. In sales voidable by Ind. 114; Nelson v. Hayner, 66 111. reason of the purchase of the land 487; Murphy v. Teter, 56 Ind. 545; by the executor or administrator, the Rochester v. Levering, 104 Ind. 562, heirs may have such sale set aside. 4 N. E. 203; Potter v. Smith, 36 Ind. Shaw v. Swift, 1 Ind. 565; Doe v. 231 ; Morgan v. Wattles, 69 Ind. 260. Harvey, 3 Ind. 104. In such action If an administrator bids in land at the five year statute of limitation is sherifif's sale on a judgment in favor a good defense. Fisher v. Bush, 133 of the estate, and takes title in him- Ind. 315, 32 N. E. 924. 358 INDIANA PROBATE LAW. § 237 In one case it is said "the general and correct rule, as estab- lished by the weight of authority, is that a judgment by a court of competent jurisdiction is not void unless the thing lacking, or making it so, is apparent upon the face of the record. If the in- firmity do not so appear, the judgment is not void but voidable."*" And it is further said that "if a sale be void, it may be treated as a nullity, and it is not necessary to set it aside by direct attack ; it may be disregarded in collateral proceedings; but if it be void- able only, it has full force and effect until set aside in proper pro- ceedings, and cannot be attacked collaterally. "^"^ While parties and privies to proceedings cannot show their in- validity in collateral proceedings by bringing forward matters extraneous to the record itself,^^ yet on a proper proceeding brought by the parties interested, to avoid a voidable sale of property, by an executor or administrator to himself made indi- rectly through a third person, proof dehors the record is admis- sible, and it may be shown that the real purchaser of the property was the executor or administrator.^'- In an action brought by the heirs to set aside a sale of land made by the administrator to himself through a third person, which action is brought by them against others than the adminis- trator, a complaint, which, after reciting the sale, its confirmation, etc., simply alleges that the administrator has held possession of the land ever since the sale, and that the plaintiffs are entitled to have the sale declared void, states no cause of action. ^^ '"Earle v. Earle, 91 Ind. 27. tlie facts, they cannot maintain an '" Comegys v. Emerick, 134 Ind. action to set the sale aside. Axton 148, 33 N. E. 899, 39 Am. St. 245. v. Carter, 141 Ind. 672, 39 N. E. 546. The heirs may make a valid sale of °' Harman v. Moore, 112 Ind. 221, their interest in the land of a dece- 13 N. E. 718; Cain v. Goda, 84 Ind. dent to his administrator. Carter v. 209; Lantz v. Maffett, 102 Ind. 23, Lee, 51 Ind. 292. If there is suffi- 26 N. E. 195. cient in the record to show the sale " Comegys v. Emerick. 134 Ind. invalid it will amount to constructive 148, 33 N. E. 899, 39 Am. St. 245; notice. Fisher v. Bush, 133 Ind. 315, Clark v. Hillis, 134 Ind. 421, 34 N. 32 N. E. 924. Where the heirs re- E. 13. ceived the surplus proceeds arising '^^ Axton v. Carter, 141 Ind. 672, 39 from a sale to himself by the ad- N. E. 546. ministrator, with knowledge of all § 238 DISPOSITION OF REAL PROPERTY. 359 After the property has passed into the hands of a bona fide pur- chaser without notice, the remedy of a resale is not available to the cestui que trust. He must then content himself with the profits made by the trustee in the transaction. And if any diffi- culty arises in determining the amount of profits realized by him, he should be charged with the largest amount he could, under all the circumstances, have realized. The rule, both in law and equity, is that if a person having charge of the property of an- other so confounds it with his own that it cannot be distinguished, he must bear all the inconveniences of the confusion, and dam- ages will be given against him to the utmost value of the arti- cles. ^^ Such sale can only be avoided by the cestui que trust in a direct proceeding brought for that purpose, but such avoidance cannot be effected at the suit of a third person.^^ When the lapse of time is relied upon as a defense in an action to set aside a sale of property of the estate to the executor or administrator, made by himself as such, it must generally be pleaded, and such plea must be based upon some statute of lim- itation. Such a suit is not an action for the recovery of real property, and therefore the limitation of twenty years does not apply ; and such purchase not being actually fraudulent the action does not come within the six-year limitation in actions for relief against frauds. As such suit is not embraced in any other statute, it comes within the provision of section 296, Burns' R. S. 1908, and must be brought within fifteen 3'ears from the time the cause of action accrues."" § 238, Report and confirmation of sale. — Until a sale of real estate by an administrator has been reported to the proper court and confirmed the sale is incomplete and no title either "Hawkins v. Ragan, 20 Ind. 193; ernes. Potter v. Smith, 2>6 Ind. 231. Brackenridge v. Holland, 2 Blackf. '" Morgan v. Wattles, 69 Ind. 260; (Ind.) Z77, 20 Am. Dec. 123; Beck- Potter v. Smith, 36 Ind. 231; Brack- ett V. Bledsoe, 4 Ind. 256. enridge v. Holland, 2 Blackf. (Ind.) ==Rice V. Cleghorn, 21 Ind. 80; 2,77, 20 Am. Dec. 123; Wilson v. Carter v. Lee. 51 Ind. 292. Such an Brookshire, 126 Ind. 497, 25 N. E. action must be brought within fifteen 131, 9 L. R. A. 792n. years from the time the action ac- 360 INDIANA PROBATE LAW. § 238 legal or equitable passes to the purchaser." The report of the sale is required to inform the court of the doings of the executor or administrator in respect to the sale of the real estate, and to determine whether the orders of the court in reference thereto have been complied with, while the confirmation or approval of the sale by the court is necessary as a final and judicial determina- tion of the legality and validity of the sale, and operates to cure all previous irregularities in the proceeding.^* But such con- firmation can have no retroactive effect so as to give validity to a sale which is wholly void.^" All sales of real estate made by an executor or administrator must be reported to the court and confirmed by it before any vested title passes to the purchaser.^'' The doctrine is that "where there are divers acts concurrent to make a conveyance, estate or other thing, the original act shall be preferred; and to this the other acts shall have relation." And in sales of real estate by an executor or administrator, three things are necessary to vest the estate in the purchaser: first, a sale by the executor or adminis- trator; second, a confirmation of the sale by the proper court, and an order for the making of a conveyance; third, the execution of such conveyance. Such conveyance, when executed and deliv- ered, relates back to the time when the sale was confirmed and the deed ordered, and vests the same rights in the purchaser as if the deed had been then executed and delivered, and, perhaps, even to the time of the sale." "•Smith V. Wert, 64 Ala. 34; Apel Hammann v. Mink, 99 Ind. 279. "It V. Kelsey, 47 Ark. 413, 2 S. W. 102 Henry v. McKerlie, 78 Mo. 416 Pool V. Ellis, 64 Miss. 555, 1 So. 725 "'Thorn v. Ingram, 25 Ark. 52 Osman v. Traphagen, 23 Mich. 80 is said that the sale was not in con- formity with the order of sale. But the confirmation of the sale, however erroneous, was not void. It must be held good until set aside." Maxwell Sankey's Appeal, 55 Pa. St. 491. v. Campbell, 45 Ind. 360; Spaulding '' Cunningham v. Anderson, 107 v. Baldwin, 31 Ind. Z'Ki. Mo. 371, 17 S. W. 972, 28 Am. St. "Bellows v. McGinnis, 17 Ind. 64; 417; Schlicker V. Hemenway, 110 Cal. Landes v. Brant, 10 How. (U. S.) 579, 42 Pac. 1063, 52 Am. St. 116n. 348, 13 L. ed. 449. Any departure ^Williams v. Perrin, 12> Ind. 57; from the order of sale must be held Comer v. Hart, 79 Ala. 389; Apel v. to be cured after confirmation. Ham- Kelsey, 47 Ark. 413, 2 S. W. 102; mann v. Mink, 99 Ind. 279. § 238 DISPOSITION OF REAL PROPERTY. 36I Upon the report being made, the court may, before confirm- ing the sale, inquire into the proceedings attending it, and if they appear for any reason to be unfair or irregular, or the land mis- described, the sale should not be confirmed.**- But in making such investigation the court cannot go back and revise the orig- inal order of sale."^ A sale by one of two administrators, where the order is made to both, is valid after confirmation.^* The statute provides that: "Such executor or administrator shall make return, under oath, of his proceedings in the premises, at the next term after such sale, to the court granting the order ; and if such court be satisfied therewith it shall confirm the same, and direct such executor or administrator to execute a convey- ance to such purchaser of such lands or his assignee; but, upon the delivery of such conveyance to such purchaser or his assignee, the latter shall execute and deliver to such executor or adminis- trator a mortgage upon such premises according to the terms of the sale, the expense of making which mortgage and the record- ing thereof shall be paid by such purchaser or his assignee ; which said mortgage such executor or administrator shall cause to be recorded forthwith in the proper record of deeds of such county; and such certificate of sale, upon the delivery of such convey- ance, shall be handed over to such executor or administrator; and such notes shall be retained by him, if the same are approved by the court. ^^ A confirmation of the sale, with full knowledge of all the facts, will cure any defects therein; such as defects in the notice of the sale ; the execution and delivery of the deed before confirmation ; or failure to state the time, place or terms of the sale; or a sale for less than the appraisement. The order of sale, the sale, its "Cruikshank v. Luttrell, 67 Ala. collaterally. Walker v. Hill, 111 Ind. 318; Davis v. Stewart, 4 Tex. 223. 223, 12 N. E. 387. However irregular and erroneous the ^^ Allen v. Shepard, 87 111. 314. proceedings and orders in relation to ** Osman v. Traphagen, 23 Mich. the sale and conveyance of real es- 80. tate may be, yet if they are not abso- *^ Burns' R. S. 1908, § 2874. lutely void they cannot be questioned 362 INDIANA PROBATE LAW. § 238 report and confirmation are steps in the exercise of the court's jurisdiction, and where jurisdiction has been acquired, subsequent errors, however grave and glaring, will not subject the proceed- ings to collateral attack.®'^ But where there are facts in the record which show that the sale was absolutely void, a confirmation will not make the sale valid.''' A confirmation of the sale is necessary to complete and perfect the title.''"* After the sale has been confii-med the purchaser is entitled to the possession of the premises sold, and to all tlie rents and profits arising therefrom ; and assumes all the risk and hazard occurring to the property after the sale."® If the purchaser has taken possession and has received from the administrator a deed to the premises, a long possession there- under will raise in his favor a presumption of the approval of the sale.'" Where the heir apj^ears after the sale of lands by an executor or administrator, and objects to the confirmation of such sale, urging as a ground for such objection a title in himself hostile to that of the ancestor, and his objection is overruled by the court and the sale confirmed, such heir is concluded by such judgment as long as it remains unreversed. For however irregular and erroneous the proceedings and orders of the court may be in relation to the sale and conveyance of the real estate, such pro- ceedings and orders are not void but must be held valid and con- clusive when questioned collaterally.'^ ■"■■Maxwell v. Campbell, 45 Ind. 78 Mo. 416; Hammann v. Mink, 99 360; Hammann v. Mink, 99 Ind. 279; Tnd. 279; Pool v. Ellis, 64 Miss. 555, Blodgett V. Hitt, 29 Wis. 169; Beid- 1 So. 725; Graham v. Hawkins, 38 ler V. Friedell, 44 Ark. 411; Wyant Tex. 628; Greenough v. Small, 137 V. Tuthill, 17 Xeb. 495, 23 X. W. Pa. St. 132, 20 Atl. 553, 21 Am. St. 342; Spaulding v. Baldwin, 31 Ind. 859. 376; Jackson v. Magruder, 51 ^lo. "'Ball v. First Xat. Bank, 80 Ky. 55; Brubaker v. Jones, 23 Kan. 411; 501. Gavin v. Graydon, 41 Ind. 559; Da- '"Smith v. Wert, 64 Ala. 34; Neill vidson V. Koehler, 1(i Ind. 398. v. Cody, 26 Tex. 286. *^Templeton v. Falls Land &c. Co., "'Gavin v. Graydon, 41 Ind. 559; 77 Tex. 55, 3 S. W. 964. Walker v. Hill, 111 Ind. 223, 12 N. •"Penu V. Heisey, 19 111. 295, 68 E. 387; Smock v. Reichwine, 117 Ind. Am. Dec. 597; Henry v. McKerlie, 194, 19 X. E. 776. § 239 DISPOSITION OF REAL PROPERTY. 363 The provision in the above statute that the report shall be made "at the next term after such sale" is not mandatory. So if the report of sale is approved and the sale confirmed before the next term of court or even at a later term it is but an irregularity which of itself will not vitiate the sale.'- Executors selling under a power in a will are not required to report the sale for confirmation, unless such sale has been made under an order of court. '^ § 239. The deed and its approval. — The confirmation of a sale does not, alone, complete the sale. The complete right of the purchaser does not vest until the full payment of the purchase- money, or a full compliance on his part with the terms of the sale, and the execution and delivery to him by the executor or administrator, of a proper deed of conveyance duly appro^•ed by the probate court. After the report and confirmation of the sale the executor or administrator must execute and deliver to the purchaser a proper deed of conveyance, at the same time taking back a mortgage upon the premises to further secure the payment of the purchase- money.'* The statute prescribes the form of a deed to be used, and further provides that it shall not be necessary to set out in such conveyance all the proceedings preliminary to the deed.'" As the deed of an administrator or executor is not required to contain a recital of all the proceedings leading up to it, but refers to the record of the court for such recitals, and as such deed de- pends upon the statements in such record, it is provided by statute in case of the destruction of the records of such sale that when- ever, heretofore or hereafter, any deed shall ha^•e been executed by any administrator, executor, guardian, sheriff, or commis- sioner of court, by virtue of any order, judgment, or decree of court, or by virtue of an}^ will, or by virtue of any sale made upon aiLy execution issued on any judgment, and the record of such order, etc., shall have been destroyed by fire in the burning of any '- Custer V. Holler. 160 Ud. 505, 67 '* Burns' R. S. 1908, § 2874. N. E. 228. " Burns' R. S. 1908, § 2880. " See ante, §§ 191, 192. 364 INDIANA PROBATE LAW. § 239 court-house in this state, then such deed, or the record thereof, shall be prima facie evidence of all the facts recited in such deed, and of the regularity and sufficiency of all the proceedings, rec- ords, and papers in virtue of which the deed was executed.'® One who asserts title to land under a deed from an executor or administrator must make proof of the proceedings whereby such executor or administrator was authorized to make the sale. The recitals in the deed are insufficient, and the court will not take judicial knowledge of such proceedings. The party who produces such deed must show that its execution was author- ized.'^ A deed is inoperative to convey title until after the report and confirmation of the sale, but if the deed has been executed and delivered before the report of sale, while made without authority, yet if the sale is afterwards reported and confirmed and a deed ordered, and the deed previously made reported to the court and approved, this will render such deed operative and effective to convey title to the purchaser at and from the time of its approval. After the report and confirmation the deed previously made may be adopted, and becomes as effective as if it had been then pre- pared and executed."^ The omission of the page of the order book of the court con- taining the order of sale from the deed, although the statute requires its insertion, does not render such deed invalid. A pur- chaser is entitled to deed with the statutory recitals, but their omission does not vitiate the deed.-'® '^Burns' R. S. 1908, § 479. When Grusenmeyer v. Logansport, 76 Ind, a will directs that real estate shall be 549; Huddleston v. Ingels, 47 Ind. appraised before sale, it will be pre- 498; Armstrong v. Jackson, 1 Blackf. Slimed after sale b\- the executor, in (Ind.) 210, 12 Am. Dec. 225. the absence of proof to the contrary', " Hammann v. Mink, 99 Ind. 279; where the deed purports to have been Maxwell v. Campbell, 45 Ind. 360. made in accordance with the will and '° Hammann v. Mink, 99 Ind. 279 ; the public records have been de- Thomas v. Le Baron, 8 Met. (Mass.) stroj'ed, that an appraisement was 355; Stryker v. Vanderbilt. 27 N. J, had. Davis v. Hoover, 112 Ind. 423, L. 68; McGhee v. Ho>i:, 106 Pa. St. 14 X. E. 468. 516. "La Plante v. Lee, 83 Ind. 155; § 239 DISPOSITION OF REAL PROPERTY. 365 The maxim caveat emptor applies to such sales, and the cove- nants of the administrator in the deed do not bind the estate.®'' Such covenants will be held to be his personal covenants. ^^ After the confirmation of the sale, a purchaser who has com- plied with all the terms of the sale has such an equity in the land as will enable him to compel the administrator to execute him a deed.'' The deed, when made, relates back to the time of the confirma- tion of the sale, and confers the same title as if it had been exe- cuted at that time.®^ If the record of the proceedings does not show that the deed to the purchaser was prematurely made, such deed will be valid, and particularly after the lapse of five years.'** And if for any reason the deed is invalid the executor or administrator may execute to the purchaser a second one.®^ The deed should be executed by the executor or administrator in his official capacity, and the character in which he executes it should appear in the deed.®'' But the deed will be sufficient with- out reciting the authority under which it is given, if it refers to the order of sale and describes the executor or administrator as such.®' The recitals in a deed are said to be not of the essence, but only of the form of the deed, and while the purchaser is entitled to ^nVorthy V. Johnson, 8 Ga. 236, 52 121, 8 X. E. 71; Burns' R. S. 1908, Am. Dec. 399; Lynch v. Baxter, 4 § 295. Tex. 431, 51 Am. Dec. 735. ^ Moody v. Hamilton, 22 Fla. 298. *'Prouty V. Mather, 49 Vt. 415; '* Lockwood v. Sturdevant, 6 Conn. Hale V. Marquette, 69 Iowa Z76, 28 Z7?,. X. W. 647; Dunlap v.- Robinson, 12 "" Coffin v. Cook, 106 N. Car. Z76, Ohio St. 530; Doe v. Cassiday, 9 11 S. E. 371. The recitals in a deed Ind. 63. are not sufficient evidence of the pro- " Anderson v. Bradlej', 66 Ala. 263 ; ceedings authorizing a sale. La Jelks V. Barrett, 52 Miss. 315; Lewis' Plante v. Lee, 83 Ind. 155. Failure Estate, 39 Cal. 306. to insert in the deed the page of the *^ Hammann v. Mink, 99 Ind. 279; order-book, where the order of sale Bellows V. McGinnis, 17 Ind. 64. is entered, does not invalidate the " Hutchinson v. Lemcke, 107 Ind. deed. Hammann v. Mink, 99 Ind. 279. 366 INDIANA PROBATE LAW. § 24O have in the deed all the recitals required by the statute, yet their omission does not vitiate the deed.*^ Upon his compliance with the terms of the sale, and the con- firmation of the sale by the court, the purchaser is entitled to a deed. Neither the court nor the administrator can impose any other condition upon him.*** The deed may be made to the purchaser, or to an assignee of his or to any person to whom the purchaser ma'y direct.®*' § 240. When a resale may be had. — If the court shall be satisfied that such proceedings were unfair, or that the sum for which the real estate or any part thereof was sold is greatly dis- proportioned to the real value thereof; or that a sum exceeding such sums at least ten per cent, exclusive of the expense of such sale, can be obtained therefor, the court may vacate such sale, in whole or in part. Or if it shall appear that the sureties taken on the notes for the purchase-money are insufficient, such sale shall not be confirmed until additional surety, to the satisfaction of the court, be given; and if such purchaser fail to give such surety within the time required by the court, the sale, as to such pur- chaser, shall be vacated. When any such sale, in whole or in part, shall be vacated, the court shall direct another sale to be made, under the same regulations governing the first order and sale as to the real estate necessary to re-expose to sale."^ This statute is held to apply to sales of personal property as well as to real estate. It is not the mere inadequacy of the price received which will justify the court in vacating a sale, unless the price bid is so grossly insufficient as to satisfy the court that there has been unfairness, or actual fraud in the proceedings.®- One who objects to the confirmation of the sale, not on account of the insufficiency of the price received, but because more could have been had, must be prepared to support his objection by an ^ Jones V. Taylor, 7 Tex. 240, 56 Am. Dec. 643; Ewing v. Higby, 7 Am. Dec. 48n; Allison v. Kurtz, 2 Ohio 198, 28 Am. Dec. 633. Watts (Pa.) 185. "^Burns' R. S. 1908, § 2875. '^Cockins V. McCurdy, 40 Kan. 758, "= Williams v. Perrin, 11 Ind. 57; 20 Pac. 470. Allen v. Shepard, 87 111. 314. •"Halleck v. Guy, 9 Cal. 181, 70 § 240 DISPOSITION OF REAL PROPERTY. 36/ offer to increase the sum bid at least ten per cent, exclusive of the costs of a resale.''^ It is likely, with the consent of the court and all those who may be interested, that the person who is willing to pay such a ten per cent, increase might be substituted for the pur- chaser in the proceedings and the expense of a second sale avoided."* When the executor or administrator by collusion with a would- be purchaser prevents competition at the sale so that the land is sold for less than it would otherwise have brought, there is such fraud and unfairness as will justify the court in ordering a resale of the premises. Any agreement entered into to prevent compe- tition among bidders at such sale is void, and the sale should be vacated. '^^ Under this statute, if the purchaser himself has been misled by the fraud of the administrator, a court would probably grant him relief by vacating the sale."** The court cannot act arbitrarily under this statute, and where a sale has been made in good faith under a valid order the court cannot set aside such sale merely to permit the administrator to file an amended petition asking to sell an additional lot of land.®^ If a sale made in good faith is set aside the purchaser is en- titled to a repayment of the purchase-money and will be given a lien upon the land for that purpose."^ "'Kain v. Masterton, 16 N. Y. 174; Perrin, IZ Ind. 57. If an executor or Wright V. McNatt, 49 Tex. 425 ; Per- administrator colludes with a pur- kins V. Gridley, 50 Cal. 97; Stiver's chaser so as to prevent competition Appeal, 56 Pa. St. 9. at the sale, and the land is sold for *• Dodd V. Templeman, Id Tex. 57, less than its value, the sale will be 13 S. W. 187. set aside. Jones v. French, 92 Ind. "'Jones V. French, 92 Ind. 138; 138. When a sale is set aside a Goldman v. Oppenheim, 118 Ind. 95, good-faith purchaser will have a lien 20 N. E. 635; Anderson v. Pedigo, on the land for his purchase-money, 126 Ind. 564, 26 N. E. 397. when the same has been properly ap- "^Fore V. McKenzie, 58 Ala. 115; plied. Jones v. French, 92 Ind. 138. Ives V. Pierson, Freem. Ch. (Miss.) "Bell v. Shaffer, 154 Ind. 413, 56 220; Shields v. Allen, V N. Car. N. E. 217. 375; Gwinn v. Williams, 30 Ind. "'Jones v. French, 92 Ind. 138; 374. This section applies to private Stults v. Brown, 112 Ind. 370, 14 N. sales of personal property made un- E. 230, 2 Am. St. 190; Shepherd v. der an order of court. Williams v. Fisher, 17 Ind. 229. 368 INDIANA PROBATE LAW. § 24 1 § 241. Setting sale aside on account of defects. — The stat- ute provides that no sale of any real estate, made by an executor, administrator, or guardian, shall be voided on account of any irregularity or defect in the proceedings, if it shall appear First. That the sale was authorized by the court having juris- diction of the parties and the subject-matter. Second. That the executor, administrator, or guardian gave bond as required by law, or has accounted for the proceeds of such sale.®" Third. That notice of the time and place of sale was given in the manner provided by law. Fourth. That the premises were sold accordingly, and are held by or under one who purchased them in good faith. ^ An action to set aside a sale of real estate made by an executor or administrator must be brought in the county where the real estate or some part of it is situated;- and such action, brought by one who was a party to the proceedings to sell, must be begun within five years after the confirmation of the sale.^ If a court which appointed an administrator and directed the sale of an intestate's land had no jurisdiction, the sale would be wholly void, and there would be no necessity for a proceeding to set aside such sale.* All who are parties to a sale by an executor or administrator, are necessary parties to an action to avoid and set aside such sale."* *"!£ a bond to secure the proceeds ceeds of said sale on liabilities of of sale is not given, and the pur- said estate, for which the land was chase-money is not accounted for, liable. Fisher v. Bush, 133 Ind. 315, the sale will be void. McKeever v. 32 N. E. 924. Ball, 71 Ind. 398. The proceeding 'Vancleave v. Milliken, 13 Ind. cannot be collaterally attacked for a 105: Vail v. Halton, 14 Ind. 344; failure to give such bond. Davidson Potter v. Smith, 36 Ind. 231. If an V. Bates, 111 Ind. 391, 12 N. E. 687. administrator colludes with a pur- ^ Burns' R. S. 1908, § 2882. chaser and prevents competition in ^McManus v. Bush, 48 Ind. 303. the sale of land, the heirs may have Where an action is brought to set the sale set aside. Jones v. French, aside a void administrator's sale of 92 Ind. 138. land, the plaintiff is not entitled to * McManus v. Bush, 48 Ind. 303. the relief demanded until he accounts 'Hoe v. Wilson, 9 Wall. (U. S.) for the amount paid out of the pro- 501, 19 L. ed. 762; Burney v. Ludel- 241 DISPOSITION OF REAL PROPERTY. 369 The record of an illegal sale by an executor or administrator is sufficient to amount to constructive notice of such illegality, when the connection between the facts disclosed by the record and the facts to be discovered are such that the former may be said to furnish a reasonable and natural clue to the latter.*' Before a sale made by an executor or administrator can be set aside by the heirs or devisees, they must either repay or tender back the amount of purchase-money paid, together with taxes paid, and improvements made by the purchaser; otherwise the purchaser will be entitled, in case the sale is set aside, to a lien for such part of the purchase-money, at least, as has been applied to the payment of the debts of the estate.^ A purchaser, however, cannot recover for money expended or improvements made after he has had notice of the action to set aside the sale.^ Where the sale is void and unauthorized for want of jurisdic- tion, the purchaser is not entitled to a specific lien upon the land for the purchase-money paid, but in so far as such purchase- money has been applied to the payment of debts of the estate the purchaser has a right to be subrogated to all the rights of the original creditors whose claims have been paid therewith; and ing, 41 La. Ann. 627, 6 So. 248. facts therein recited expressly, and Where a sale of lands by an admin- of such fa(;ts as may be fairly in- istrator is void, the statute of limita- ferred from the recitals. Johnson v. tions as to an action to set aside the Hess, 126 Ind. 298, 25 N. E. 445, 9 sale will begin to run from the time L. R. A. 471. the purchaser takes possession under ' Xeel v. Carson, 47 Ark. 421, 2 S. the certificate of sale. L'Hommedieu W. 107; Fisher v. Bush, 133 Ind. 315, V. Cincinnati &c. R. Co., 120 Ind. 435, 32 X. E. 924 ; Shepherd v. Fisher, 17 22 X. E. 125. Unless within some Ind. 229; Jones v. French, 92 Ind. statutory exception, the limitation of 138; Stults v. Brown, 112 Ind. 370, five years will protect such sale. 14 X. E. 230, 2 Am. St. 190; Morris Hutchinson v. Lemcke, 107 Ind. 121, v. Goodwin, 1 Ind. App. 481, 27 N. 8 X. E. 71. E. 985 ; Smith v. Knoebel, 82 111. 392 'Fisher v. Bush, 133 Ind. 315, 32 Schafer v. Causey, 76 Mo. 365 N. E. 924; Jones v. McXarrin, 68 Wehrle v. Wehrle, 39 Ohio St. 365 Me. 334. The record of a judgment Walton v. Cox, 67 Ind. 164. is only constructive notice of all the ' Snider v. Snider, 3 W. Va. 200. 24— Pro. L.aw, 3/0 INDIANA PROBATE LAW. § 242 his lien is according to the priorities of such creditors, and no greater." In this connection there is a statiitor\' provision or two which is appHcable. It is provided that "whenever any land sold by an executor, administrator, guardian * * * js afterwards recov- ered in the proper action by any person originally liable, or in whose hands the land would be liable to pay the demand or judg- ment for which, or for whose benefit the land was sold, or any one claiming under such person, the plaintiff shall not be entitled after the filing of the complaint to a writ for the possession with- out having paid the amount justly due."'" How the amount due shall be determined and adjusted is pro- vided for as follows: "The defendants in tiie main action, or any of them, may file their complaint, setting forth the sale and title under it, and any other matter contemplated in this act. Proceedings shall then be had to determine the amount of pur- chase-money paid, with interest, the value of the lasting improve- ments, the damages, if any, which the premises have sustained by waste or cultivation, the value of the rents and profits, and the taxes paid. If any balance remain due from the plaintiff in the main action, the court shall fix a reasonable time within which he shall pay the same, and if it be not paid within that time, the court shall order the lands to be sold without relief from valua- tion or appraisement laws. In case of sale, there shall be paid the costs of the proceedings and the amount due the defendant, with interest, and the surplus, if any, shall be paid to the plain- tiff."^^ § 242. Same — Time within which action must be brought. — It is provided by the fourth clause of section 295. R. S. 1908, that actions for the recovery of real property sold by executors or administrators, upon a judgment specially directing the sale of such property, brought by any party to the judgment, his heirs. or any person claiming title under a party, acquired after the ° Sheldon, Subrogation, §202; Dun- Ellis. 64 Miss. 555. 1 So. 725. can V. Gainey, 108 Ind. 579. 9 X. E. '"Burns' R. S. 1908. § 1131. 470; Frost v. Atwood, 12> Mich. 67, "Burns' R. S. 1908, § 1132. 41 N. W. 96, 16 Am. St. 560; Pool v. § 243 DISPOSITION OF REAL PROPERTY. 37 1 date of the judgment, must be brought within five years after the sale is confirmed. This statute of limitation begins to run at the date of the con- firmation of the sale, and actions falling within its terms are barred after the lapse of five years from that date, unless any person having a right of action was at that time under some legal disability; if so, such person would have two years after the re- moval of his disability to prosecute such action. ^^ An action is barred by the above statute after the lapse of five years from the confirmation of the sale, although the sale was absolutely void. As valid sales require no protection by statutes of limitation, such statutes are intended to apply to illegal and void sales.^^ The widow whose interest in her husband's real estate has been sold by his administrator is not barred by this statute from recov- ering the same.^* This statute protects a purchaser at an administrator's sale al- though the real estate was so erroneously described as to have rendered the sale void.^^ Such actions are barred in five years though the sale by the administrator is absolutely void.^*' § 243. Same — When heirs estopped. — An heir may estop himself from questioning the validity of a sale made by the ad- ministrator, even where the sale is voidable, by receiving and retaining his distributive portion of the proceeds of such sale.^' To create such estoppel, however, the heir must receive such "Walker v. Hill, 111 Ind. 223, 12 '^ Bumb v. Card, 107 Ind. 575, 8 N. X. E. 387; Wright v. Kleyla, 104 Ind. E. 713; Elliott v. Frakes, 71 Ind. 412; 223, 4 X. E. 16; Burns' R. S. 1908, State v. Stanley. 14 Ind. 409; Web- § 298; Davidson v. Bates, 111 Ind. ster v. Bebinger, 70 Ind. 9; Wilmore 391, 12 X. E. 687. v. Stetler, 137 Ind. 127, 34 N. E. 357, "Fisher v. Bush, 133 Ind. 315, Z2 36 X. E. 856, 45 Am. St. 169; Karns X. E. 924; Irey v. Markey, 132 Ind. v. Olney, 80 Cal. 90, 22 Pac. 57, 13 546, Z2 X. E. 309. Am. St. 101 ; France v. Haynes, 67 "Compton V. Pruitt, 88 Ind. 171; Iowa 139, 25 X. W. 98. An heir who Kent V. Taggart, 68 Ind. 163. receives and retains a part of the "Armstrong v. Hufty, 156 Ind. proceeds of a voidable administrator's 606, 55 X. E. 443, 60 X. E. 1080. sale is estopped to contest the valid- " Hampton v. Murphy, 45 Ind. App. ity of such sale. Palmerton v. Hoop, 513, 86 X. E. 436, 88 X. E. 876. 131 Ind. 2Z, 30 X. E. 874. 372 INDIANA PROBATE LAW. § 243 portion of the proceeds, with full knowledge of the fact tliat all his estate in the land has been sold on the petition of the admin- istrator, and with such full knowledge he must elect to retain his share of the proceeds of the sale. Equity will not uphold his claim to both the money and the land." Although an order obtained by an administrator to sell the widow's interest in her deceased husband's real estate is void, and a sale made on such order is absolutely \oid and conveys no title,^° yet such widow may, by her acts, and by receiving and re- taining the portion of the purchase-money derived from the sale of her interest, estop herself from setting aside a sale so made."'' In a sale of a decedent's lands by his administrator, if the heirs who are the owners of one-third of the land subject to the widow's life estate, who is a childless second wife, are made parties to the proceeding and join therein, the entire land being sold, and accept on distribution their respective shares of the pro- ceeds of such sale, they cannot be heard afterwards to say that the sale of such one-third was unauthorized."^ The interest of the w^idow in her husband's lands was sold to satisfy a purchase-money mortgage against it, and out of the proceeds of the sale other liens against the land other than for "Colbert v. Daniel, 2)2 Ala. 314; demands of the creditors of John N. Storrs V. Barker, 6 Johns. Ch. (N. Armstrong, and was not liable to be Y.) 166. 10 Am. Dec. 316n ; Bumb v. made assets for the payment of his Gard, 107 Ind. 575, 8 N. E. 713; debts; and the sale and conveyance Palmerton v. Hoop, 131 Ind. 23, 30 of her share, by his administrator, N. E. 874; Evans v. Snyder, 64 Mo. though made with her written con- 516. It is held that if a widow, with sent, and though she received a part knowledge of all the facts, elects to of the purchase-money, did not de- receive the purchase-money, she can- feat the rights of the appellants nor not. so long, at least, as she retains deprive them of their inheritance, the money, successfully dispute the upon her death, in and to her said validity of the sale. Pepper v. Zahn- share of said real estate." Louden zinger, 94 Ind. 88; Bumb v. Gard, v. James, 31 Ind. 69; Longlois v. 107 Ind. 575. Longlois. 48 Ind. 60; Hendrix v. " Kent v. Taggart. 68 Ind. 163 ; El- Sampson. 70 Ind. 350. liott V. Frakes, 71 Ind. 412. In Arm- ^ Pepper v. Zahnzinger, 94 Ind. 88. strong v. Cavitt, 78 Ind. 476, it is "Myers v. Boyd, 144 Ind. 496, 43 said: "The share of said Samantha, X. E. 567. in said real estate, was free from all § 244 DISPOSITION OF REAL PROPERTY. 373 purchase-money were paid by the administrator. It was held that the widow was estopped to question such payments in a col- lateral proceeding." The mere receipt by her of the proceeds of the sale as her part of her distributive share of her husband's estate, or even her presence at the sale without objecting thereto, will not work an estoppel against her.'^ If, however, she receives and retains her share of the purchase-price, after having consented to the order and sale, she, as well as those who claim through her, will be estopped."'* A voidable sale by the administrator may be confirmed by those of the heirs who are adults, and such confirmation will estop them from afterwards questioning the title of the pur- chaser." There is no power in the court to authorize the sale of more than the present interest of the heirs: so that they are not estopped to set up any after-acquired title."' An heir, who is also a creditor of the estate, and who holds a lien upon the real estate sold by the personal representative of his ancestor, is not estopped to enforce his lien by reason of the fact that he was made a party to the proceedings to sell such real estate, simply as heir. He is concluded only in the character m which he is sued." § 244. Mortgage and lease of real estate.— Instead of or- dering the sale of real estate for the payment of debts or legacies, the court may authorize the executor or administrator to mort- gage or lease such real estate, or any part thereof, for any period not longer than five years, if it shall appear that the money neces- sary to be raised can be procured thereby to the interest of the estate.'' ^= Denton v. Arnold, 151 Ind. 188, Beckham v. Newton, 21 Ga. 187; 51 X E 240 Randle v. Carter, 62 Ala. 95. ^Compton'v. Pruitt, 88 Ind. 171. =« Flenner v. Travelers' Ins. Co.., 89 =«Irey v. Mater, 134 Ind. 238, 23 Ind. 164. N E 1018; Roberts v. Lindley, 121 "Lord v. Wilcox, 99 Ind. 491. Ind. 56, 22 X. E. 967. ^ Burns' R. S. 1908, § 2886. *Lee V. Gardiner, 26 Miss. 521; . 374 INDIANA PROBATE LAW. § 244 A lease or mortgage executed by the executor or administrator, under the authority of the court, shall be as valid as if executed by the deceased in his lifetime; but before the court shall make any order to authorize an executor or administrator to execute such lease or mortgage, he shall execute bond in like manner as is required previous to making an order for the sale of real estate.-" It will be noticed that our statutes which authorize an executor or administrator to make assets out of his decedent's real estate for the payment of his debts, provide three modes for raising funds for that purpose : ( i ) by sale of the land, (2) by mortgag- ing it, (3) by leasing. An administrator always, and an executor, where no authority is given him in the will, to do either, must first procure an order from the proper court. This order must be based on a petition, and in the proceedings all the heirs, devisees, and others interested in the real estate should be made parties.^" And as the statute authorizing a sale of lands is separate and dis- tinct from the one authorizing a mortgaging or leasing of the same, and as different facts are required to be proven in each instance, an executor or administrator, in a proceeding on his petition to sell lands, cannot procure an order to mortgage or lease such lands, and an order made in such case is invalid and does not bind the parties to the proceedings.^^ The statute of 1843^- "po" this subject was, in substance, the same as the present one, and under that statute the Supreme Court held that regular adversary proceedings should be had, and that all persons interested in the land to be leased or mortgaged should be made parties thereto, and that notice of the pendency -' Burns' R. S. 1908, § 2887. In an of proceedings to mortgage or lease application for an order to lease lands, such proceedings as to them lands a guardian ad litem must be are void. Wetherill v. Harris, 67 Ind. appointed for minors. Comparet v. 452. Randall, 4 Ind. 55. Upon a notice *' Smith v. Eels, 27 Ind. .\pp. 321, and application to sell lands, the 61 X. E. 200. court cannot authorize a mortgage " Edwards v. Baker, 145 Ind. 281, or lease of such lands without further 44 N. E. 467; Martin v. Xeal, 125 notice to the heirs. Martin v. Neal, Ind. 547, 25 N. E. 813. 125 Ind. 547. 25 N. E. 813. If heirs '' R. S. 1843, p. 532, § 252. are not made parties to or notified § 244 DISPOSITION OF REAL PROPERTY. 375 of such proceedings should be given them. Unless such steps were taken in the case, no vaHd lease or mortgage of such real estate could be made by an executor or administrator.^^ The real estate descends to the widow and heirs on the death of the ancestor, and the rule is universal that notice must be given to those interested in the real estate, that they may be heard to controvert the justice or poHcy of ordering a sale; and the same rule must apply in reference to mortgaging or leasing the real estate. It is necessary that notice be given to those in- terested in the land, that they may be heard and given an oppor- tunity to controvert the justice or policy of encumbering or leas- ing the real estate."* It is safe to say that such proceedings should be had by petition, appraisement, bond, etc., as are had in case of application to sell real estate to pay debts, made by execu- tors or administrators. And such lease or mortgage, after its execution, should be reported to the court for its approval. Such lease or mortgage, when executed, conveys no greater estate than that possessed by the executor or administrator, and he, of course, takes no greater estate than that possessed by the dece- dent at the time of his death. And a mortgage made by an execu- tor or administrator will not bind him personally.^" The court granting the order for the mortgage, lease or sale of such real estate shall possess the same power to compel such executor or administrator to account for the proceeds thereof as in case of personal estate."" In the absence of a statute, or some power in the will, an ad- " Piatt V. Dawes, 10 Ind. 60. Hensey in the land is not subject to "Martin v. Xeal, 125 Ind. 547, 25 the mortgage made by her as ex- N. E. 813: Woerner Am. Law ecutrix of the will of Fowler Mc- Admr. p. 1029. Larin." Citing Piercy v. Piercy, 19 ="Burbank v. Dyer, 54 Ind. 392; Ind. 467; Leach v. Prebster, 39 Ind. Wetherill v. Harris. 67 Ind. 452. In 492; Brannon v. May, 42 Ind. 92 this case the court says: "Having Young v. Pickens, 49 Ind. 23 made the mortgage as executrix, it Heavenridge v. Nelson, 56 Ind. 90 cannot be held that Mrs. Hensey is Dale v. Hartley, 58 Ind. 101 ; May v. bound personally. * * * This course Fletcher, 40 Ind. 575. of reasoning conducts us to the con- ^^ Burns' R. S. 1908, § 2888. elusion that the interest of Maria A. 376 INDIANA PROBATE LAW. § 245 ministrator or executor has no authority to mortgage or lease the real estate of his decedent." Nor under the above statute has an executor or administrator power to either lease or mortgage his decedent's real estate with- out an order of the court to that effect.^** § 245. Giving bond to prevent sale, etc. — It is within tlie power of those who own the real estate of a decedent or who may be interested in the settlement of his estate, to prevent the executor or administrator of such decedent from either selling, mortgaging, or leasing, such real estate. The statute provides that an order for the sale, lease, or mortgage of such real estate shall not be granted if any of the persons interested in such estate shall give bond to the executor or administrator in a sum and with sureties to be approved by the court, conditioned to pay all liabilities eventually due from the estate, with charges of ad- ministration, so far as the personal estate is insufficient.^" One interested in the estate of a decedent agreed in writing, with the administrator of the estate, that if he would resign his trust as such administrator and relinquish all claims to property belonging to the estate in the hands of such person, that he would, as a consideration therefor, assume and pay all valid claims against the estate of the intestate. Held, that a creditor of such intestate could maintain an action on such agreement.'"' A compliance with the above section of the statute is the only method known in our law to prevent an order granting a sale of a decedent's real estate to pay his debts when the same is properly applied for by his executor or administrator."*^ An heir cannot prevent the sale of the real estate by the admin- " Merchants' Xat. Bank v. Weeks, " Burns" R. S. 1908, § 2889. 53 Vt. 115, 38 Am. Rep. 661; Smith '"Cross v. Truesdale, 28 Ind. 44. V. Hutchinson, 108 111. 662; Titter- "In equity such a suit was always ington V. Hooker, 58 Mo. 593; Grif- maintainable under the facts dis- fin V. Johnson, Zl Mich. 87; Smith- closed in this complaint, there being wick V. Kellj', 79 Tex. 564, 15 S. W. no administrator of the deceased 486. debtor against whom the creditor ^ Piatt V. Dawes, 10 Ind. 60; Howe could proceed." V. Gregory, 2 Ind. App. 477, 28 N. E. " Ditton v. Hart, — Ind. — , 95 X. 776. E. 119. § 246 DISPOSITION OF REAL PROPERTY. 377 istrator by a mere offer to pay the debts of the decedent. Noth- ing less than the payment of all the debts, including the expense of administration, or a filing of the bond required by this statute is sufficient. The court cannot compel such bond but if such bond is filed and approved by the court, that alone prevents the sale, and not the mere offer to file a bond.*- § 246. Preventing sale and barring claims. — In 1905 a stat- ute was enacted by which, upon a proper petition presented to the court having probate jurisdiction, the court could make an order, conditioned on no letters of administration being granted on an estate within a certain time, by which any future administration upon the estate was prevented and all claims against the estate barred, except as they might be enforced against the heirs and devisees. The statute is as follows : That any one interested in any real estate in this state, liable for the debts of any decedent and desirous of protecting the same from sale to make assets for the payment of such debts, may file a petition in any circuit court of this state, authorized to issue letters of administration on the estate of such decedent, or with the clerk thereof in vacation, setting forth such facts, giving the name of such decedent and the date of his or her death, if known, and if unknown and by diligent inquiry cannot be ascertained, alleging such fact, and shall also indorse thereon the time for hearing such petition, which shall not be less than thirty days from such filing. Upon the filing of such petition it shall be the duty of the clerk of such court to give notice of the filing of such petition, its nature and object, and the date set for hearing as indorsed on said petition, by three successive weekly publications in some newspaper published in the county in which said petition has been filed. Upon the day fixed for such hearing the court, if it shall ap- pear by proof that due notice has been given, as provided in the preceding section, and no letters of administration have been issued on such estate, shall proceed to hear such petition, and if *= Davis V. Kendall, 161 Ind. 412, 68 X. E. 894. ^yS INDIANA PROBATE LAW. § 247 the court be satisfied tliat the material a\ennents thereof are true, it shall so find, and enter a decree that if no letters of admin- istration be issued on the estate of such decedent for a period of twelve months from that date, all claims against such estate shall be barred, except as now provided in case of liabilities of heirs, devises [devisees] and legatees, but if it shall appear that letters of administration have been issued on the estate of such decedent, the court shall dismiss the petition and proceed with the adminis- tration of such estate under existin<4' laws. If the decree provided in the preceding section shall be made and no letters of administration be issued on the estate of such decedent for a period of twelve months thereafter, all claims against the same shall be barred except as now provided in case of liabilities of heirs, devises [devisees] and legatees, and no letters of administration shall thereafter be issued on the estate of such decedent. All costs of such proceedings and publicatitju sliall be jxiid by such petitioner or petitioners.''^ § 247. Conveyance upon title bond, the statute. — \\'hen- ever any person who has executed a title bond or contract for the conveyance of real estate to any person, or corporation, shall die before such conveyance is executed, and shall have made no legal provisions, by will or otherwise, for the execution of such con- veyance, and the whole or any part of the purchase-money be un- paid at his death, the executor or administrator of such deceased person may file a petition in the circuit court of the county where the real estate or any part thereof lies, or where letters testa- mentary or of administration are granted, against the obligee, vendee or assignee, or all of them, as may be necessary, and also the heirs and devisees, if any. of the deceased, praying in such petition for the appointment of a commissioner to execute a con- veyance to the proper holder of such bond or contract.** The court in such case, where process has been served ten days, or publication made, in case of nonresidence of the defendants, "Burns' R. S. 1908, §§ 2890 to "Burns' R. S. 1908, § 2897. 2894. § 248 DISPOSITION OF REAL PROPERTY. 379 for thirty days, before the first day of the term, may appoint a commissioner to execute a conveyance in conformity with the requisitions of the title bond or agreement, and to report the con- veyance as soon as executed, to the court, and if the court shall approve the deed, the same shall be entered on record and deliv- ered to the executor or administrator.^^ The executor or administrator may tender such deed to the person to whom such tender should be made, and demand pay- ment of the purchase-money due and unpaid.^*' If, upon due tender of the deed, the person liable to an action for the recovery of the purchase-money refuse to pay the same, such executor or administrator may maintain an action for the recovery of the purchase-money due and unpaid, against the per- son thus liable.^' § 248. Same — Statute construed. — These statutes apply in cases where the decedent was the vendor, and provide a method for enforcement of the contract against the vendee by putting it in the power of the executor or administrator to tender to such vendee a deed, such tender being necessary to a recovery of the purchase-mone}-. But in cases in which the decedent is himself the vendee and holds land under a contract, or title bond, the purchase-money, or part thereof remaining due at his death, are provided for in other statutes. Prior to the enactment of the above statutes an executor or administrator was without remedy in such cases save in equity. This resort was open to him at any time, and the personal repre- sentative of a vendor, who had died without having conveyed, and before he was bound to convey, had a right in a court of equity, to require the heirs or devisees of the vendor to make a deed according to the contract of sale and to demand of the vendee the payment of the purchase-money; and he might also enforce the vendor's lien for the price of the land ; or such court *" Burns' R. S. 1908, § 2898. "' Burns' R. S. 1908, § 2900. ♦"Burns' R. S. 1908, § 2899. 380 INDIANA PROBATE LAW. § 248 might appoint a commissioner to make a deed of conveyance to the vendee/" In tlie case of Mather v. Sherwood, 8 Ind. 92, the court sug- gested that every vendee necessarily contracted with reference to the death of the vendor before the title bond has matured. And as a consequence, it is implied that he shall, in such contingency, accept such evidence of title as the law authorizes the courts to make in lieu of that which the death of the vendor would render impossible to be made. Death does not destroy the mutuality of the contract, and each party to the contract takes the chance as to which may die first; and in the case of the death of either before the execution of the contract, it should be executed on his part by his heirs. The vendee himself will be allowed a lien on the land for the purchase-money, or any part of it, paid by him, if the vendor or those duly authorized refuse to convey.*" "It will be observed that under the proceedings authorized by the statute, two suits are necessary: one to procure a conveyance by which a tender can be made; a second, after the tender, to re- cover judj^ncnt for the purchase-money. Under the common- law rcmctlv, as recognized by the Supreme Court, the whole matter was settled in a single proceeding, to which all persons interested were made parties, and by means of which the title was diverted from the heirs of the decedent and transmitted to tiic purchaser of the land, while the latter was compelled to pay the money in arrears. ♦ * * The courts will probably hold the remedy provided by the statute to be cumulative only, and the common-law proceeding, from its obvious convenience, will still l>e generally employed.'*''" If a wife, with her husband, agrees to the sale of his lands, her contract, she being covert, is utterly void; and being void, is not susceptible of ratification. Such contract cannot be specifioilly enforced against her after the death of her husband, nor can she ^'Lacon v. Mertins. o Atk. 1; *• Shirley v. Shirley. 7 Bbckf. Hurst V. Hensley, 7 Blackf. (Ind.) ^lr^d^ 452. o7o : Mather v. Sherwood. 8 Ind. 92 ; " Rowland's Ex'r's Manual, p. 102. Cortner v. Amick. 13 Ind. 463 ; Leslie V. Slusher, 15 Ind. 166. § 249 DISPOSITION OF REAL PROPERTY. 38 1 ratify the contract so as to bind herself. Nothing short of a new, vahd and binding contract, made with her after the death of her husband, upon a new consideration, can operate to deprive her of her interest in the land.^^ § 249. Legalizing act. — As has been shown, a sale of a de- cedent's real estate for tlie payment of his debts can only be leo-ally made by his executor or administrator. The court has no authority to order such sale by any other person; no power to appoint a commissioner to make such sale. A sale made by one so appointed was void, and the bond given by the commissioner of no binding etlect even as a common-law obligation. To cure defects and legalize sales so made and perfect title passed under conveyances made by such commissioners, the legislature in an act, in force March 5, 1885, provided that, in all cases in which real estate belonging to any decedent has been sold under an order of any circuit court, upon the petition of an administrator or executor, for the payment of debts, or pursuant to the pro- visions of a will, and the proceedings upon such petition, and in making such sale and in the confirmation thereof, and in making conveyance to the purchaser, have been, in all respects, regular, except that the sale was made by a commissioner appointed by the court, instead of the executor or administrator, and the pro- ceeds of such sale have been fully paid over and accounted for to the proper person or authority, such sale shall not be deemed void by reason of having been made by such commissioner, but the same is hereby legalized, and the deed made in pursuance thereof shall be as effectual to pass title as if such sale had been made by the administrator or executor : Provided, however. That this act shall onlv apply in cases where, at the time of its taking effect, the title to said' real estate would be, but for such sale, still vested in persons who were parties to the proceedings under which such sale was made, their heirs, devisees or voluntary grantees." -Long V. Brown, 66 Ind. 160. "Burns' R. S. 1908, § 2879. CHAPTER XI. CLAIMS AGAINST ESTATES. 250. Coinnion law liability of exec- §268. utors and administrators. 251. Lien of the decedent's debts. 269. 252. The order in which assets 270. shall be applied. 253. Necessity of notice of ap- 271. point men t. 254. Time and method of filing 271. claims. 255. Claim must be verified by affi- 273. davit. 256. What claims must be filed. 274. 257. Claims not due must be filed. 275. 258. When claims shall be pre- 276. sented. 277. 259. Claims must be filed before 279: final settlement. 260. The statement of the claim. 279. 261. When estate liable on cove- nants. 280. 262. Contingent claims. 281. 263. Charging estate with services rendered decedent. 264. .Agreements to leave property 282. by will. 265. Disposition of claims founded 293. on joint contracts. 266. When decedent is co-surety. 284. 267. Duty of clerk as to claims, etc. Duty of executor or adminis- trator as to claims. Same — Continued. Effect of allowance by execu- tor or administrator. Claim of executor or adminis- trator — How allowed. Interested parties may resist allowance. Proceedings when claim not allowed. Practice on transfer of claim. Pleadings on transfer of claim. Pleading special defenses. Set-off and counter-claim. Claim based on note — Attor- ney fees. Widow and heirs not neces- sary parties. The trial of claims. Liability of executors and ad- ministrators on their prom- ises. Form and effect of judgment rendered on claim. Xo execution on judgment of allowance. Proceedings after judgment. ? 250. Common-law liability of executors and administra- tors. — At common law an executor or administrator took the same property in, and absolute p(^ver over, the personal estate of his decedent as the decedent himself possessed at the time of his death. And such executor or administrator was held personally 382 § 250 CLAIMS AGAINST ESTATES. 383 liable for the debts of his decedent to the extent of such personal property as was received by him. x\nd under the old forms of practice this liability might be enforced against such executor or administrator in either law or chancery. The common-law rule, however, was early changed in this state by legislative enactment, in so far, at least, as to require that claims against the estate of a decedent should be filed in the proper court for adjustment and allowance.^ While an action might have been brought on a claim against the executor or administrator personally, he was permitted to show, in bar of a judginent against himself individually, that no assets of the estate had come to his hands, or that they had all been properly administered ; and the judgment then would have been for the amount found due, to be levied of the goods of the decedent which might afterward come to his hands to be adminis- tered." It is said that the principal function of executors and adminis- trators is to pay the debts and discharge the liabilities of their testators and intestates, and that to accomplish this purpose they are vested with title to all the personal property of the decedent, and with a power over the real estate which is contingent on the insufficiency of the personal property.^ Executors and administrators, however, are no longer person- ally liable for the debts of their decedent except as to liabilities contracted by them, and though such debts may be made for the benefit of the estate, yet the estate is not liable. It is often true though that probate courts, in the exercise of a proper discretion, will allow such officers credit for disbursements made by them in reasonable amounts for services necessary in the proper dis- charge of the duties imposed upon them.* 'R. S. 1838. p. 182. § 28. ney; so for corn fed to the stock of -Wilt V. Bird, 7 Blackf. (Ind.) 258. the estate; for the terms of a con- * Woerner Am. Law Admin., § 355. tract by the administrator in renting * It follows, that the estate is not lia- the land of the estate ; or for improv- ble to an attorney for his services at ing the property, or for the purchase the instance of an executor or ad- of other propert}', or for the erection ministrator, but that the latter is of a monument "for the estate," or himself liable in a suit by the attor- for buying horses to use on dece- 384 INDIANA PROBATE LAW § 251 The rule is that if an executor or administrator wishes to avoid a personal HabiUty in such cases he must expressly stipulate that the estate alone shall \ye liable and that creditors shall be paid uut of the estate funds.' Acting under advice of counsel is a protection to an adminis- trator in the jierformance of a duty within the scope of his au- thority, but there is no protection for him wlien he oversteps the defined boundaries of tluty and authority.'^ ij 251. Lien of the decedent's debts. — The right of a cred- itor to his just proix)rtion of the property of his deceased debtor vests at the instant of such debtor's death. Before his death the creditor had but a right of action, but afterwards his interest in such debtor's estate is the same as the interest of the heirs or next of kin would have been, had there been no debts. The in- terest of the creditor is paramount to the title of the heirs and devisees, and also to the will of the testator; and is prior in iK>int of time to judgments against such heirs or devisees for their in- dividual debts.' dent's farm, though he buys "as ad- ministrator." The same holds good in respect of negotiable paper made, indorsed, or accepted by him, al- though he add to his signature his official character: and, a fortiori, where he gives a bond. So where the executor employs a salesman to take charge of the stock in trade be- longing to the estate, or a sawyer to saw lumber. So where money is bor- rowed by pledging property of the estate, unless pledged for the pur- poses of administration; for the same reason, the estate is not bound by the administrator's agreement to credit a note payable to his decedent with the value of work done upon the lands of the estate, nor by his contract to extend the time of payment of a note due the estate ; nor are the expenses incurred by the administrator in car- rying on the business of the decedent witiiout authority, the debts of the estate; even if expressly authorized to carry on business, the creditor must look to the executor personally. Woerner Am. Law Admin., § 356. "* Studebaker Bros. Mfg. Co. v. Montgomery, 74 Mo. 101 ; New v. Xicoll. 73 N. Y. 127, 29 Am. Rep. Ill; Banking Co. v. Morehead, 116 X. Car. 413, 21 S. E. 191. "Pryor v. Davis, 109 Ala. 117, 19 So. 4-JO. 'Bruch v. Lantz, 2 Rawle (Pa.) 392, 21 Am. Dec. 458n ; Mann v. Mann, 12 Heisk. (Tenn.) 245; Myer v. McDougal, 47 111. 278; Morris v. Movvatt, 2 Paige (X. Y.) 586, 22 Am. Dec. 661. Creditors may follow as- sets of the estate into the hands of a third person which such persons have been enabled to obtain by collusion with the representatives of the estate. Johnston v. Lewis, Rich's Eq. (S. § 252 CLAIMS AGAINST ESTATES. 385 In one case it is said ''the only reason why each creditor may not take what belongs to him is because it is impracticable to make a just distribution without some delay. The law, therefore, takes the goods of a decedent into its custody, and bids the claim- ants to wait until their rights can be ascertained. An officer of the law commits them to the care of an administrator upon an express trust and with a solemn injunction to give each his due. The creditor need not bring suit. The assets applicable to his debt are already in hands of a legal officer, whose duty to pay it over will be enforced by the proper authorities without an action. All that he is recpiired to do is to make his claim within a given time.""" The general creditors of the estate have no lien, in the com- monly accepted sense of that term, upon the personal property of the deceased, although such property is the primary fund from which their claims are to be paid. As against specific liens against the personal property, the general creditors are entitled only to such portion of the i)ersonal property as would, in the absence of debts, descend to the heirs; and such creditors have no right to test the validity of an unrecorded mortgage upon personal prop- erty until they have in some way acquired a lien upon the property mortgaged." i; 252. The order in which assets shall be applied. — While the personal estate of a decedent is the primary fund for the pay- ment of his debts, all of his property is, after his death, liable to be made assets for the payment of his debts; and such decedent cannot, by will, exempt from this liability any part of his property Car.) 40; Worthcy v. Johnson, 8 Ga. Chandler, 78 Ind. 417. 236, 52 Am. Dec. 399. The rights of * McClintock's Appeal, 29 Pa. St. the creditor against the heir may be 360. lost bv laches. Collamore v. Wilder, " Mayer v. Myers, 129 Ind. 366, 27 19 Kan. 67; Bishop v. O'Conner, 69 X. E. 740; Jones Mortgages, § 240. 111. 431. Creditors must, however. The fact that a chattel mortgage is enforce their rights to a decedent's not recorded is not a defense that can assets by an administration upon his be made by the administrator or heir estate. Wilson v. Davis, 37 Ind. 141 ; of the deceased mortgagor agamst its McCoy V. Payne, 68 Ind. 327; Carr foreclosure. V. Huette, 73 Ind. 378; Chandler v. 25^Pro. L.wv. 386 INDIANA PROBATE LAW. § 252 to the prejudice of his creditors. He may, however, as against his heirs, provide that a certain portion of his estate shaU be charged v^ith the payment of his debts to the exoneration of the rest." For the payment of the debts and Habihties of a decedent, the assets of his estate will be marshalled in the following order: I. His personal estate, except such as may be by law exempt, or which has been specifically bequeathed. 2. The real estate, if any, which may be by will set apart as a fund for the payment of debts. 3. The real estate which will pass by descent. 4. The lands which have been specifically devised." The second and third rules change places where the estate appropriated by the will for the payment of the debts is charged generally and not specifically.^" Land acquired after the making of a will, which descends to the heirs at law, is liable for the decedent's debts in preference to land specifically devised. ^^ And land which passes by descent is liable for the debts of the estate in advance of a specific legacy.'^ Specific legatees are en- '"Trunibo v. Sorrency, 3 T. B. stead after the decedent's death. Mon. (Ky.) 284, 16 Am. Dec. 103n; Wilson v. Proctor, 28 :\Iinn. 13, 8 Magruder V. Carroll, 4 Md. 335. The N. E. 830. whole of a decedent's property, both ''Livingston v. Newkirk, 3 Johns, real and personal, as against his Ch. (X. Y.) 312; Chase v. Locker- heirs, is subject to the payment of his man, 11 Gill & J. (Md.) 185, 35 Am. debts and liabilities. Therefore, a Dec. 277. claim for damages for breach of " Stires v. Stires, 1 Halst. Ch. (N. covenant in a deed should be prose- J.) 224. Direction by testator to sell cuted against his personal represen- lands for payment of debts, and if tative or filed against his estate, there should be a deficiency, to sell Hartman v. Lee, 30 Ind. 281 ; Ratcliff such other property as his wife V. Leunig, 30 Ind. 289. should point out, charges the wife's "Alexander v. Worthington, 5 Md. legacj', as between her and other 471; Dunbar v. Dunbar, 3 Vt. 472; legatees, but does not exonerate lands Alexander v. Waller, 6 Bush (Ky.) descending cum onere. An executor 330; Elliott v. Posten, 4 Jones Eq. is entitled to the possession of per- (N. Car.) 433; Whitehead v. Gib- sonal property bequeathed until the bons, 10 N. J. Eq. 230. An adminis- estate is settled. Highnote v. White, trator has no right to use the per- G] Ind. 596. sonal assets of the estate to make re- " Alexander v. Worthington, 5 Md. pairs or pay taxes upon the home- 471. Assets may be partly legal and § 252 CLAIMS AGAINST ESTATES. 387 titled to have the assets which have descended to the heir mar- shalled, but not so with lands devised, unless such lands were devised subject to the payment of the debts of the estate ; for as between a specific legacy and a devise, the former is first liable for the payment of simple contract debts.^^ A testator may by express devise for that purpose set apart certain lands for the payment of his debts, and when this is done, lands so devised constitute the primary fund out of which the debts must be paid and the personal property is exonerated. There must, however, appear from the will an intention to charge the real estate so as to exempt the personalty.^® If the will directs a sale of the real estate and charges the pay- ment of the debts and legacies upon the proceeds of the real and the personal estate in one mass, the real and personal estate must contribute ratably to the payment of the debts and legacies.^' The charging of all the debts against a particular devise does not have the effect of releasing the personal property or lands devised to others from liability for his debts, if the land charged should prove insufficient to pay the debts.^* The testator's creditors are to be secured independently of his acts, for the legal obligation to pay debts is more imperative than the gifts in the will. In the absence of a testamentary direction to the contrary, the rule requires that debts and legacies shall be paid out of the personal estate if it is sufficient, but a testator may order his debts and the expenses of administration to be paid out of his personal estate, or out of his real estate, or out of both, ot out of any particular part or parcel of either.^** partly equitable, and the court will St. 505; Reid v. Corrigan, 143 111. follow the rule of law as to the legal 402, 32 N. E. 387; Clark v. Worrall, assets, but will direct the equitable 33 Ind. App. 49, 68 N. E. 699. assets to be applied ratably. Moses " Cox v. Corkendall, 13 N. J. Eq. V. Murgatroyd, 1 Johns. Ch. (N. Y.) 138; Elliott v. Carter, 9 Gratt (Va.) 119, 7 Am. Dec. 478. 541. ''Chase v. Lockerman, 11 Gill & J. "Duncan v. Gainey, 108 Ind. 579, (Md.) 185, 35 Am. Dec. 277; Dugan 9 X. E. 470. V. Hollins, 11 Md. 41. ^« Quinby v. Frost, 61 Me. 77; Fen- " Marsh v. Marsh, 10 B. Mon. wick v. Chapman, 9 Pet. (U. S.) 461, (Ky.) 360; Hancock V. Minot, 8 Pick. 9 L. ed. 193; Woonsocket Inst, for (Mass.) 29; Bane v. Wick, 14 Ohio Sav. v. Ballou, 16 R. I. 351, 16 Atl. 388 INDIANA PROBATE LAW. § 253 In this state the law makes a decedent's real estate liable tor his debts, but this statutory liability is not wholly identical with the liability of land devised charged with the payment of debts. One distinction is that the creditor has no such lien on the land in the first instance as he has where his debt is made an actual charge against it, for then he can pursue the land in the hands of an alienee; and also a difference is made in the running of the statute of limitations."'^ Words of doubtful import in a will are not to be construed as exempting the personal proj^erty of the testator from the pay- ment of debts and legacies, or of charging them on his real estate."^ If there are several tracts of land charged with the i)ayment of legacies, and the devisee sells them at dift'erent times- to different persons, the charge should be enforced by laying it on the tracts in the inverse order of their alienation."- The right of a legatee to whom any specific chattel has been bequeathed to have it exonerated from encumbrance thereon is the same as that of a devisee. For this reason the direction of the testator that his debts be paid will extend to the disencum- brance of a specific bequest.-^ § 253. Necessity of notice of appointment. — The statute requires the publication of nofice of the grant of letters testa- mentary or of administration to executors or administrators. The publication of this notice is the first step toward the satisfac- tion of the claims against a decedent's estate. The purpose of the notice is to enable creditors of the estate to present their demands to the administrator or executor or to the probate court, as the case may be. The notice must state whether the estate will prob- 144. 1 L. R. A. 555n; Duncan v. Wal- N. W. 57; Agnew v. Fetterman, 4 lace, 114 Ind. 169, 16 N. E. 137; Pa. St. 56, 45 Am. Dec. 671. Clark V. Worrall, 33 Ind. App. 49, 68 -' Geiger v. Worth, 17 Ohio St. 564 ; N. E. 699. Arnold v. Dean, 61 Tex. 249; Evans '"Steele v. Steele, 64 Ala. 438, 38 v. Beaumont, 16 Lea (Tenn.) 713. Am. Rep. 15; Meakin v. Duvall, 43 " Fessenden's Estate, 170 Pa. St. Md. 372; 2 Jarman on Wills, 584; 631, 33 Atl. 135; Lovejoy v. Ray- Grotenkemper v. Bryson, 79 Ky. 353 ; mond, 58 Vt. 509, 2 Atl. 156. Gates V, Shugrue, 35 Minn. 392, 29 '' Woerner Am. Law Admin., § 494. I 2^4 CLAIMS AGAINST ESTATES. 3^9 ably be solvent or insolvent. The statute is as follows : Every executor or administrator, within thirty days after his appoint- ment, shall give notice thereof by publication, three weeks suc- cessively, in some newspaper printed and published in the county, if any there be ; and if not, by publishing the same in some news- paper printed and published nearest thereto; and such notice shall state whether the estate is probably solvent or insolvent. A copy of such notice, with proof of such publication and dates, shall be filed by the executor or administrator with the proper clerk, within thirty days after the publication is complete.-' One of the principal purposes of this statute is to fix a time from which the right to file claims against an estate begins to run.-^ Though the publication of this notice does not affect the gen- eral statute of limitations, yet it does raise a special bar in favor of the estate. If claims are not filed within a year after the giv- ing of such notice, and the estate is finally closed at the end of the year, so far as the administration is concerned, such claims are barred.-*^ ^ 254. Time and method of filing claims.— Xo action shall be brought by complaint or summons against the executor or ad- ministrator of an estate for the recovery of any claim against the decedent, but the holder thereof, whether such claim be due or not, shall file a succinct and definite statement thereof in the office of the clerk of the court in which the estate is pending; any claim of the executor or administrator against the decedent shall be made out and filed in the office of the clerk of the court in which the estate is pending; if any claim against the decedent be founded upon any written instrument, alleged to have been exe- cuted by him, the original, or a complete copy thereof shall be filed with the statement ; the statement shall set forth all credits and deductions to which the estate is entitled, and shall be accom- panied by the affidavit of the claimant, his agent or attorney, that =* Burns' R S. 1908, § 2776. X. E. 1125; St. Joseph County Sav. =^ Floyd V. J^liller, 61 Ind. 224. Bank v. Randall, 37 Ind. App. 402, 76 =»Stults V. Forst, 135 Ind. 297. 34 X. E. 1012. 390 INDIANA PROBATE LAW. § 254 the claim, after deducting all credits, set-offs and deductions to which the estate is entitled, is justly due and wholly unpaid. And no claim shall be received unless accompanied by such affidavit; if the claim be secured by a lien on any real or personal property, such lien shall be particularly set forth in such statement and a reference given to where the Hen, if of record, will be found ; if such claim be filed after the expiration of one year from the giving of notice by the executor or administrator of his appoint- ment, it shall be prosecuted solely at the cost of the claimant, and if 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, devisees and legatees.-' Claims must be filed to participate in the personal assets of the estate, but such debts as are liens against the real estate continue as liens unless discharged by decree or payment."* It was held that the object of this statute was not to change the remedy the law gave the creditor, but to secure a preference in the payment of his debt over claims of less dignity, and to pro- tect the administrator or executor against the consequences of first paying debts of a lower degree.-" Immediately upon the filing of a claim against an estate, the clerk shall enter the same in the claim docket of the estate under the appropriate headings; and if the same, as shown by the state- ment thereof, be secured by a lien, the clerk shall briefly note the kind of lien upon such docket. The filing of the claim, and entry thereof upon the claim docket, shall be deemed the commence- ment of the action upon such claim, and shall be all the notice necessary to be given to the executor or administrator of the pendency of the action.^'' =' Burns' R. S. 1908, § 2828. ^ Phipps v. Addison, 7 Blackf. =^ Beach v. Bell, 139 Ind. 167, 38 (Ind.) 375. N. E. 819. It is held in this case that '" Burns' R. S. 1908, § 2836. A where a person has a specific lien on summons upon a simple claim is not real estate he can either file his claim under this statute required to be therefor against the decedent's estate, issued. The filing and entry being or he may enforce such lien against notice sufficient. Noble v. McGinnis, the land after final settlement of the 55 Ind. 528. estate. g ^^- CLAIMS AGAINST ESTATES. 39^ The filing of a claim, and its entry upon the claim docket by the clerk of the court wherein an estate is pending for settlement, is all the notice required to be given of the pendency of such claim against an estate. The executor or administrator of such estate is bound to take notice of such filing.'' It is not necessary to issue a summons upon a claim when filed, nor to formally make the administrator or executor a party de- fendant thereto: when the claim has been filed and entered upon the docket, the action has been commenced and the executor or administrator is a party thereto by operation of law.=^^ No demand is necessary before filing a clami. The fihng is itself a sufficient demand upon the executor or administrator.'^ Where a final settlement is set aside and the estate reopened, claims may be filed the same as if no such settlement had been made.'* § 255. Claim must be verified by affidavit.— The rule is a general one that all claims and demands against an estate of a decedent, which can be asserted against the executor or admmis- trator of such estate, must be authenticated by the affidavit of the creditor before thev can be allowed against the estate.'^ A claim against a decedent's estate, when filed, is required to be verified bv affidavit. This has been the law in this state by statutory enactment since the act of February 20, 1855, but later statutes," while still requiring the claim to be verified, have enacted different penalties for a failure to attach the statutory affidavit The act of 1855 provided that in the absence of such affidavit "no costs shall be recovered by the claimant." But it was held that this did not entitle the estate, against which the claim was filed, to a judgment for the costs. It simply left the parties, re- - Campbell v. Lindley, 17 Ind. 280 ; ^ Chicago &c. R. Co v^ Harshman. Campbell v. Lindley, 18 Ind. 234; 21 Ind App. 23, 51 N. K 343. ''^.^'XZ., 1 Ind. App. Zr' 14 Ark. 246; PuckeU v. Mc 339 27%: E 511 ' Call, 30 Tex. 457; Hahnlm's Appeal -Woods V.' Matlock, 19 Ind. App. 45 Pa. St. 343; Curry v. Bryant, 7 364. 48 X. E. 384. Bush. (Ky.) 301. 392 INDIANA PROBATE LAW, § 255 spectively, liable to pay their own costs.^" Such affidavit was not absolutely essential to the validity of the claim, and was sufficient if it was in substantial compliance with the form required by the statute, and need not follow its literal wording.^^ And a claim filed without the affidavit attached might afterwards be amended by being sworn to, but would not then carry costs generally."''^ The statute of 1881, section 2310, prior to its amendment by the act of March 7, 1883, provided that the affidavit should be filed by the claimant, his agent or attorney, but it does not pro- vide that the relationship of the affiant shall be stated in the affi- davit. The object of this statute is to secure a verification of the claim. The language of the provisions of this statute relative to such verification and the penalty for a failure to attach such affi- davit to the claim when filed, is imperative and is unusually strong. It expresses a command that the claim should be verified "when filed," and the penalty prescribed for a disobedience of this command is that the claimant shall be "bound for all costs in the prosecution of the claim." There is no room for construc- tion and there is but one meaning that can be assigned to the language of the statute, and that meaning is, that the claim must be verified "when filed," or "all costs of prosecuting the claim" must be paid by the claimant. The provision does not, as those of former statutes did, prohibit the claimant from recovering costs, but it declares that he shall pay costs. Nor does it stop short of all the costs, for the language is as comprehensive as could well be employed. The decisions made under former stat- utes cannot be accepted as guides under the provisions of this, for the reason that its terms are essentially different. ■'*'■* This statute was amended in 1883 to read as at present set out in this section, and, while it still provides that all claims filed against the estate of a decedent shall be verified by affidavit, it is silent as to the question of costs, but as it provides that no claim '' Walters v. Hutchins, 29 Ind. 136 ; Denman, 48 Ind. 65. Hannum v. Curtis, 13 Ind. 206 ; Story "^ Anderson v. Greensburgh Tpk. V. Story, 32 Ind. 137. Co., 48 Ind. 467. " Hannum v. Curtis, 13 Ind. 206 ; '' Hanna v. Fisher, 95 Ind. 383. Story V. Story, 32 Ind. 137 ; Smith v. § 255 CLAIMS AGAINST ESTATES. 393 shall be received for filing unless it is verified, it accomplishes practically the same end as before its amendment. It goes farther than former statutes did and makes the affidavit of the claimant, his agent or attorney, a prerecjuisite to the filing of a claim. The language of the statute at present is, that "No claim shall be re- ceived unless accompanied by such affidavit." This makes a material change in the law as established by the line of decisions above referred to, and makes the affidavit essential to the valid- ity of a claim.*** Where a claim has been properly authenticated and filed, the failure to verify any additional paragraphs afterward filed with the clerk of the court, is only an immaterial error. The court has taken jurisdiction of the claim upon the original paragraph which was duly verified.*^ The affidavit attached need not be in the exact words of the statute, but must be in substance the same.'*" A claim which has been properly verified is prima facie gen- uine, and the burden of proving the contrary is on those who dispute the claim. '*^ *° When a claim is verified by some Ind. 137; Smith v. Denman, 48 Ind. person other than the claimant, the 65 ; Brown v. Sullivan, 3 Ind. App. affidavit need not show that such 211, 29 N. E. 453. A statement in person was the agent or attorney of the affidavit attached to a claim the claimant. Hanna v. Fisher, 95 filed against an estate, "that no pay- Ind. 383. ments have been made thereon ex- " Taggart v. Tcvanny, 1 Ind. App. cept the credits therein given, and 339, 27 X. E. 511. Where a second there are no set-ofifs against the same paragraph of complaint against an to the affiant's knowledge," is equiv- estate is filed in open court, after alent to setting forth "all credits and leave obtained, the failure to verify deductions to which the estate is en- it, is an immaterial error if the first titled;" and the statement that the paragraph has been duly verified, balance shown "is now justly due The claimant against an estate is en- and owing," is the equivalent of titled to recover his costs, if he is saying that it "is justly due and successful in establishing his claim, wholly unpaid." Taggart v. Tevan- notwithstanding the fact that by n\', 1 Ind. App. 339, 27 N. E. 511. leave of court he has filed a second "Valentine v. Valentine, 4 Redf. paragraph of complaint which is un- (X. Y.) 265. The fact that an affi- verified. davit attached to a claim filed against " Sheeks v. Pillion, 3 Ind. App. an estate by an administrator was 262, 29 X. E. 786; Story v. Story, 32 made in an adjoining state and recited 294 INDIANA PROBATE LAW. § 256 Where a claim has been disallowed and has been transferred to the issue docket and an amended complaint filed, no new affidavit need be made to such claim." If a claim has been filed and allowed in good faith without having been verified by affidavit, the payment of it probably could not be escaped on that account." § 256. What claims must be filed. — All claims against the estate of a decedent, whether contingent or absolute, have to be filed against such estate in the proper court, and the filing of such claim constitutes a sufficient demand against the administrator or executor. A more formal demand would be a useless cere- mony." This rule of law is in direct conflict with the one on this point adopted by the court in the case of Hannum v. Curtis, 13 Ind. 206, and to the extent of such conflict that case is ex- pressly overruled. This statute applies to claims against an estate originating after as well as before the death of the decedent.'' The statute also requires that all claims shall be filed within one year after giving the notice of appointment of an executor or administrator, or before a final settlement of the estate is made by the executor or administrator. ■** It makes no difference whether the claim is due or not, for the statute makes ample provisions for the filing and collecting of the claims, due or not, against decedents' estates. And when a claim has been brought within the provisions of the that the claimant's decedent was late estates, and the remedy there pro- of said county, did not estahlish in the vided must be pursued. All claims, Supreme Court the fact that the claim- whether due or not, must be filed in ant was a nonresident administrator, tlie office of the clerk of the court in Davis V. Huston, 84 Ind. 272. which the estate is pending." ** Pence v. Young, 22 Ind. App. ■" Scott v. Dailey, 89 Ind. 477. 427, 53 N. E. 1060. '"Bell v. Lewis, 44 Ind. 129; Stults « Consolidated Nat. Bank v. Hayes, v. Forst, 135 Ind. 297, 34 N. E. 1125. 112 Cal. 75, 44 Pac. 469. In this last case it is said: "One *« Wright V. Jordan, 71 Ind. 1 ; who, without excuse by reason of Trimble v. Pollock, 77 Ind. 576. In some statutory disability, fails to file Stults V. Forst, 135 Ind. 297, 34 N. his claim against decedent's estate E. 1125, the court says: "The de- before final settlement, is barred of cedent's estates act provides specially any right of action against the heirs." for the collection of claims against 256 CLAIMS AGAINST ESTATES. 395 statute and has been properly filed, final settlement of the estate will be postponed so long as that, or any other claim so filed re- mains unsettled.*' No final settlement of an estate can be law- fully made while claims filed against it remain pending and un- disposed of, or unless provision for their payment has been made according to the terms of section 2923, Burns' R. S. 1908.''' The statute now forbids the bringing of an action in the ordi- nary form against an executor or administrator, either person- ally or in his representative capacity, on a claim due from his de- cedent and all claims against a decedent's estate not filed as re- quired bv this statute, unless the claim falls within the exceptions noted at section 2965, Burns' R. S. 1908, are barred. There is now no other method of conferring upon a court jurisdiction ot such claims, except they be filed and placed by the clerk upon the appearance docket, and if not allowed they must be transferred to the issue docket for trial.'' A husband cannot maintain a claim against the estate ot his deceased wife for money paid by him, prior to the marriage, upon ^■•Cincinnati &c. R. Co. v. Heaston, 43 Ind. 172. '"Reed V. Reed, 44 Ind. 429; Hea- ton V. Knowlton, 65 Ind. 255; Stults V. Forst, 135 Ind. 297, 34 N. E. 1125. '"Ratcliff V. Leunig, 30 Ind. 289; Hyatt V. Mavity, 34 Ind. 415; Stan- ford V. Stanford, 42 Ind. 485; No- tle V. McGinnis, 55 Ind. 528. No demand is necessary before filing a claim against the estate of a decedent. Trimble v. Pollock, 11 Ind. 576; Walker v. Heller, 104 Ind. 377 3 N. E. 114; Armacost v. Lind- le"y,' 116 Ind. 295, 19 N. E. 138. A claim filed must be sufficient to show a prima facie liability on the part of the estate. Windell v. Hudson, 102 Ind. 521, 2 N. E. 303; Culver v. Yundt, 112 Ind. 401, 14 N. E. 91; Thomas v. Merry, 113 Ind. 83, 15 N. E. 244; State v. Edwards, 11 Ind. App. 226, 38 N. E. 544. If a claim is just and owing it may be allowed if it is not in an itemized form. Lan- caster V. Gould, 46 Ind. 397. Where the record does not show the date at which an administrator gave no- tice of his appointment, an argument based upon the assumption that a claim was not filed within the statu- tory period, will not be considered. Dillman v. Barber, 114 Ind. 403, 16 X. E. 825. A claim not filed within thirty days before final settlement of the estate is barred, and the fact that it is on file before the final set- tlement report is approved, does not delay the settlement. Roberts v. Spencer, 112 Ind. 81, 13 N. E. 127; Roberts v. Spencer, 112 Ind. 85, 13 X E 129; Schrichte v. Stites, 127 Ind 472 26 X. E. V, 1009; Huffman V. Wyrick. 5 Ind. App. 183, 31 N. E. 823. 396 IXDIANA PROBATE LAW. § 257 her indebtedness, and in the absence of evidence it will be pre- sumed that money paid by him after marriage upon her indebted- ness was paid as an advancement to her/- No claims need be filed for taxes. Taxes are not claims which the law either requires or intends shall be tiled against the estate of a decedent. The duty rests upon the executor or adminis- trator to pay all taxes." Where a husband and wife executed a mortgage jointly, the death of the husband will make the claim several for the purpose of enforcing it against his estate.'"* S 257. Claims not due must be filed. — The death of a debtor does not of itself mature debts of his outstanding which are not due. but in the interest of the settlement of his estate, and that his executor or administrator may have official knowl- edge of all the indebtedness, the statute requires that all claims against a decedent's estate, whether due or not shall be filed in the proper court for allowance and collection ; and where a claim is not due, the tinal settlement of the estate may be postponed until such claim becomes due. But if any person interested in such estate shall execute bond, with penalty and surety to the acceptance of a creditor whose claim is not due, for the payment thereof when it shall fall due. if the same shall prove to be a legal demand, the court, on such bond being delivered and accepted and a statement thereof, subscribed by such creditor, filed in such court, shall direct a minute thereof to be made on its order book, and the estate of the deceased to be discharged from further lia- bility touching it.'^"' If such person fail to pay such claim when it shall be due, such '- Gosnell V. Jones, 152 Ind. 638, 53 •'' Foster v. Honan, 22 Ind. App. N. E. 381. 252. 53 N. E. 667. '' Cullop V. Vincennes, 34 Ind. '-' Burns' R. S. 1908, § 2833. Claims App. 667, 72 N. E. 166; Graham v. not due should be filed against the Russell, 152 Ind. 186, 52 N. E. 806; estate as are other claims. Cincinnati Gallup V. Schmidt. 154 Ind. 196, 56 Sec. R. Co. v. Heaston, 43 Ind. 172; N. E. 443. Maddox v. Maddox, 97 Ind. 537. § 258 CLAIMS AGAINST ESTATES. 397 creditor may maintain a suit on such bond, and the person execut- ing the same may show any matter of vahd defense. ="" *!\ failure to file a claim, whether due or not, before final settle- ment of the estate, bars the creditor from enforcing his claim against either the estate or the heirs and devisees of the deceased debtor, although they may have received property from such de- cedent."' § 258. When claims shall be presented.— As a rule a time is fixed within which a claim must be presented to an executor or administrator; and its presentation in due form as required by the statute is essential to entitle the creditor to maintain his ac- tion against the estate."'* And a failure of a creditor, who is not excused by some statu- tory disability, to present his claim within the prescribed time, will debar him of any right of action on such claim, not only against the estate, but against the heirs of such estate who may have inherited property therefrom.'" Such failure on the part of the creditor does not usually work an extinguishment or forfeiture of his debt, but furnishes to those adversely interested grounds of defense against his claim, which they may plead or waive."" ^" Burns' R. S. 1908, § 2834. a claim was not filed within the stat- " Cincinnati &c. R. Co. v. Heaston, utory period, will not be considered. 43 Ind 172; Sheeks v. Fillion, 3 Ind. Dillman v. Barber, 114 Ind. 403, 16 App. 262, 29 N. E. 786. X- E. 825. For facts held to be in- ^"Ratcl'iff V. Leunig, 30 Ind. 289; sufficient to excuse a claimant for Eustace v. Jahns, 38 Cal. 3; Hudson not filing his claim against an estate, V. Breeding, 7 Ark. 445; Walker v. so as to relieve him from the provi- Diehl, 79 iTl. 473 ; Robertson v. De- sions of the statute under which such moss ' 23 Miss. 298 ; Stults v. Forst, claim is barred, see Roberts v. Spen- 135 Ind. 297, 34 N. E. 1125. cer, 112 Ind. 85, 13 N. E. 129. ^"Cincinnati &c. R. Co. v. Heaston, ™ Whitmore v. San Francisco Sav. 43 Ind 172; Pratt v. Lamson, 128 Union, 50 Cal. 145; Brownell v. Mass. 528; Ticknor v. Harris, 14 N. Williams, 54 Iowa 353, 6 N. W. 530; H 272 40 Am. Dec. 186; Stults v. Brown v. Porter, 7 Humph. (Tenn.) Forst, 135 Ind. 297, 34 N. E. 1125. 27Z; Judy v. Kelley. 11 111. 211, 50 Where the record does not show the Am. Dec. 455 ; Shurbun v. Hooper, date at which an administrator gave 40 Mich. 503; Dawes v. Shed, 15 notice of his appointment, an argu- Mass. 6, 8 Am. Dec. 80. The fact ment based upon the assumption that that a claimant against a decedent's 3q8 INDIANA PROBATE LAW. ^ 255- And such defense, to be available, must be urged in the trial court, and cannot, for the first time, be raised in an appellate court."' In this state a claim may be filed at any time after notice of his appointment has been given by an executor or administrator, and until within thirty days before the filing of his final report by such executor or administrator, otherwise such claim shall be barred. But if a claim is not filed within one year from the pub- lication of such notice of appointment, "it shall be prosecuted solely at the cost of the claimant."*"' The proper filing of a duly authenticated claim is all that is re- quired of a creditor. His claim has then been presented to the executor or administrator for consideration. The statute then makes it the duty of the executor or administrator to examine the claim and allowance docket in the proper court for claims filed against the estate he represents, and all claims which have been filed for more than thirty days it is his duty to allow or dis- estate knew of a sale or transfer of the property of the estate to persons who knew of his claim, will not es- top him from asserting his claim against the estate and against the property thus transferred, although he delayed the bringing of his action for several years. Smith v. McDon- ald, 3 Ind. App. 49, 28 N. E. 994. In a proceeding upon a claim against a decedent's estate, an answer was in- sufficient which showed the filing and pendency of the final settlement ac- count of the administratrix before the filing of the plaintifif's claim, but which failed to show that the ac- count for final settlement was filed after one year had expired from the time of giving notice by the adminis- tratrix of her appointment. Shirley V. Thompson, 123 Ind. 454, 24 N. E. 253; Jackson v. Butts, 5 Ind. App. 384, 32 N. E. 96. "'Hardin v. Crist, 7 Ind. 167; Drake v. Foster, 52 Cal. 225. "'A claim not filed within thirty days before final settlement of the es- tate is barred, and the fact that it is on file before the final settlement report is approved does not delay the settle- ment. Roberts v. Spencer, 112 Ind. 81, 13 N. E. 127; Roberts v. Spen- cer, 112 Ind. 85, 13 N. E. 129; Schrichte v. Stites, 127 Ind. 472, 26 X. E. n, 1009; Huffman v. Wyrick, 5 Ind. App. 183, 31 N. E. 823. A judgment creditor, by filing a claim against the estate of the deceased debtor for the unpaid balance of his judgment and procuring it to be al- lowed, does not release his lien or waive his right to enforce the origi- nal judgment by a resale of land after the previous sale has been va- cated by redemption. Green v. Stobo, 118 Ind'. 332, 20 N. E. 850. § 259 CLAIMS AGAINST ESTATES. 399 allow by a written entry on such docket opposite the particular claim. ''^ § 259. Claims must be filed before final settlement. — The pendency of a single claim may involve the solvency or insolvency of the estate, and arrest any further payment by the executor or administrator of claims against the estate; for this reason all claims are required to be filed at least thirty days before final settlement. This means thirty days before the filing of any final settlement report by the executor or administrator after one year has expired from the time of giving notice of his appointment, and not thirty days before the confirmation of such report by the court. The Supreme Court, in further construing the provisions of this statute, say: "The proper decision of that question de- pends upon tlie construction to be given to the phrase 'the final settlement of the estate' as used in that provision. The term 'final settlement,' as applied to the administration of an estate, is usually understood to have reference to the order of court ap- proving the account which closes the business of the estate, and which finally discharges the executor or administrator from the duties of his trust, and ought generally to be so construed when there is nothing in the context justifying a different construction. But we regard the phrase in question, in the connection in which it is used, as implying more than the mere order of the court declaring the estate to be finally settled. When the court makes an order approving an account submitted for final settlement, it, in the absence of some other specific direction, relates back to the time the account was filed, and gives force and elTect to the ac- count from the date of its filing. Therefore, when an executor or administrator has, after the expiration of the proper period of time, filed his account for final settlement, the estate is, in a limited and conditional sense, finally settled. The only condition in such case is that the account shall be found to contain a full and correct exposition of the condition of the estate at the time it was filed, and to show that the business of the estate has been apparently completed. The filing of the final account is the com- " Burns' R. S. 1908, § 2837. 400 INDIANA PROBATE LAW. § 260 mencement of proceedings for final settlement, and the interven- inp- death of the executor or administrator does not necessarily abate the proceedings thus instituted, which, when consummated, thus become an entirety. Any other construction might result in an unreasonable procrastination in the final settlement of an estate by the presentation and allowance of claims after the assets are exhausted and tlie final account is filed, thus compelling either a withdrawal or the rejection of such final account, and a readjust- ment of, or a deficiency in, the assets of the estate, to the possible great injury of the executor or administrator, as well as of others.""* vj 260. The statement of the claim. — In preparing a claim for presentation and filing, no particular form is necessary, pro- vided it is sufficiently definite to notify the executor or adminis- trator of its character and amount and succinct enough to bar another action thereon. No formal complaint is necessary, though it is no objection to a claim if it is filed and presented in the form of a complaint.'''' All that is necessaiw by way of a complaint is a statement containing sufficient substance to apprise the administrator or executor of the nature of the demand, and such a statement that a judgment based thereon may be used to *^ Jackson v. Butts, 5 Ind. App. and the two demands must be 384, 32 N. E. 96; Stults v. Forst, 135 deemed compensated as far as they Ind. 297, 34 N. E. 1125; Roberts v. equal each other" a claim not falling Spencer, 112 Ind. 85, 13 N. E. 129; within any of the exceptions of Schrichte v. Stites, 127 Ind. 472, 26 N. § 2828 as amended, may, even after E. n, 1009. Although §2828, Burns' the settlement of the estate, be R. S. 1908, provides that all claims pleaded as a set-off against a debt not filed thirty days before the final held by the heir of a deceased per- settlement of an estate shall be son, although a separate action could barred except in certain cases, nev- not be maintained upon it. Huffman ertheless, under § 357, Burns' R. S. v. Wyrick, 5 Ind. App. 183, 31 N. E. 1908, which provides that when 823. "cross-demands have existed between '*' Ginn v. Collins, 43 Ind. 271; Post persons under such circumstances v. Pedrick, 52 Ind. 490; Taggart v. that one could be pleaded as a coun- Tevanny, 1 Ind. App. 339, 27 N. E. terclaim or set-off to an action 511; Brown v. Sullivan, 3 Ind. App. brought upon the other, neither can 211, 29 N. E. 453; Sheeks v. Pillion, 3 be deprived of the benefit thereof by Ind. App. 262, 29 N. E. 786; Han- the death or assignment of the other, num v. Curtis, 13 Ind. 206; Davis v. 26o CLAIMS AGAINST ESTATES. 401 bar another suit for the same claim. Such statements are placed upon the same footing as those required to be made by the plain- tiff in actions originating before a justice of the peace.*"' The claimant has the right, in order to meet the exigencies of his evidence, to state his claim in several different paragraphs." The statement filed, must, however, contain all the facts necessary to show, prima facie, that the estate is lawfully indebted to the claimant.*'^ Huston, 84 Ind. 272; Lockwood v. Robbins, 125 Ind. 398, 25 N. E. 455 ; Knigbt V. Knight. 6 Ind. App. 268, 33 X. E. 456; Wolfe v. Wilsey, 2 Ind. App. 549, 28 N. E. 1004. A claim tiled against a decedent's estate is sufficient if the demand is stated succinctly and definitely. Succinct- ness and definiteness in the statement of the credits to which the estate is entitled are not required, and if the credits and deductions are stated merely, there is a compliance with the statute. Miller v. Eldridge, 126 Ind. 461, 27 N. E. 132. 'A claim against decedent, reading, "In ac- count with J. M. S. and L. E. S. * * * Dr., for board, washing, sewing, nursing and expense of last sickness, watching with and caring for deceased from November 1, 1888, to September 29, 1893; total, two hun- dred and fifty-six weeks, two thou- sand one hundred and twenty-five dollars," is sufficient, under the stat- ute requiring holders of a claim against a deceased person to file a "succinct and definite" statement thereof with the clerk of the court. Stewart v. Small, 11 Ind. App. 100, 38 N. E. 826; Bailey v. Wilson, 45 Ind. App. 571, 91 N. E. 249. ^ Wolfe v. Wilsey, 2 Ind. App. 549, 28 N. E. 1004; Hopewell v. Kerr, 9 Ind. App. 11, 36 N. E. 48; Ginn v. Collins. 43 Ind. 271; Milhollin v. Fuller. 1 Ind. App. 58, 27 N. E. 111. A wife loaned money to her husband from time to time. Thereafter the wife purchased a piece of real estate, paying a portion of the purchase- money in cash, and executing a mort- gage, in which her husband joined, to secure the balance thereof. The wife directed the husband to apply the money owing by him to her on account of said loans to the payment of such mortgage, and he fully paid the mortgage indebtedness, which was greater than the aggregate amount of the loans. Held, that after the death of the husband, the wife had no claim against his estate on account of said loans. Held, also, that the payment made by the hus- band on the mortgage should, to the extent of his indebtedness to his wife, be treated prima facie as made in compliance with her request. "'Shirk v. Coyle, 2 Ind. App. 354, 27 X. E. 638; Wolfe v. Wilsey, 2 Ind. App. 549, 28 N. E. 1004; Frazer v. Boss, 66 Ind. 1; Taggart v. Te- vanny, 1 Ind. App. 339, 27 N. E. 511. "« Walker v. Heller, 104 Ind. 327, 3 N. E. 114; Thomas v. Merry, 113 Ind. 83. 15 X. E. 244; Taggart v. Te- vannv, 1 Ind. App. 339, 27 N. E. 511; Pulley V. Perfect, 30 Ind. 379; Hath- awav'v. Roll, 81 Ind. 567; Windell v. Hudson, 102 Ind. 521, 2 N. E. 303; Culver V. Yundt. 112 Ind. 401, 14 N. E. 91; Scholz v. Schneck, 174 Ind. 186, 91 X. E. 730. 26 — Pro. L.^w, 402 INDIANA PROBATE LAW. § 260 If any part of the claim is sufficient it will not be held bad, be- cause there are individual items which, taken singly, would not amount to a good cause of action.^® As the whole of a decedent's property, both real and personal, is liable for the payment of his debts, a claim for damages for a breach of covenant of warranty, in a deed of conveyance made by such decedent in his lifetime, may be collected by filing the claim against his estate. And if the claim did not accrue in time to be properly filed against the estate before its final settlement, it may be prosecuted against the heirs, devisees and distributees of such decedent, who are liable for his debts to the extent of the property received by them from such decedent's estate.'^' 'A copy of a promissory note executed by the decedent, accom- panied by the necessary affidavit, is a sufficient statement of a claim to file against his estate.'^ And such note may be filed against the estate whether due or not.'" In a claim against the estate of a decedent, founded, not upon a note, but for money collected on the note and converted by the decedent, it is not necessary to file a copy of the note with the claim." The estate of a deceased clerk of the court is liable for money *®Taggart v. Tevanny, 1 Ind. App. "' Crabb v. Atwood, 10 Ind. 322; 339, 27 N. E. 511. A claim filed against Pulley v. Perfect, 30 Ind. 379; Noble a decedent's estate is sufficient if it v. :McGinnis, 55 Ind. 528; Price v. contain enough to apprise the de- Jones, 105 Ind. 543, 5 N. E. 683, 55 fendant of the nature of the claim Am. Rep. 230. and the amount demanded, and to '' Maddox v. Maddox, 97 Ind. 537. bar another action for the same de- " Bryson v. Kelley, 53 Ind. 486. An mand. The insufficiency of the state- allegation in a complaint against a ment of one or more of the separate decedent's estate, that the decedent items of the claim will not render died without having paid to the bad on demurrer the entire claim plaintiff certain money placed in his containing other separate items of hands by a third person for the ben- indebtedness so stated that if they efit of the plaintiff, and that it is had been the only items the claim due and unpaid, is sufficient after would withstand a demurrer. Sheeks verdict to show that the decedent at V. Pillion, 3 Ind. App. 262, 29 N. E. his death, and his administrator upon 786. the filing of the claim, still retained '"Blair v. Allen, 55 Ind. 409; Hart- such money. Walker v. Heller, 104 man v. Lee, 30 Ind. 281. Ind. 327, 3 N. E. 114. 26o CLAIMS AGAINST ESTATES. 403 collected by such clerk in his official capacity and not paid over by him. The proper remedy is by filing a claim against the estate." The county treasurer is not compelled to file a claim for de- linquent taxes due against an estate of a decedent, but he may seize the personal property of the estate in the hands of the ex- ecutor or administrator to satisfy such taxes. '^ Waste committed by a tenant for life upon the real estate will constitute a valid claim in favor of the remainder-man against the estate of such tenant.'^" The statement of a claim filed against a decedent's estate will not be insufficient because it is stated against the deceased and not against the estate or the executor or administrator thereof." The omission of a Christian name of a claimant in the state- ment of his claim is an error of no consequence; is at best only matter in abatement and may be amended.''® The statute does not require the claimant to set forth his claim by a regular complaint constructed in accordance with the ordi- '* State, ex rel., v. Givan, 45 Ind. 267. '"Ring V. Ewing, 47 Ind. 246; Gal- lup V. Schmidt, 154 Ind. 196, 56 N. E. 443 ; Cullop v. Vincennes, 34 Ind. App. 667, n X. E. 166. '"Noble V. McGinnis, 55 Ind. 528. " Boyl V. Simpson, 23 Ind. 393. A claim against a decedent's estate in the following form : Estate of A, deceased, to B, Dr. "To amount paid on judgment against said dece- dent, upon which said John Kerr was surety, including principal and inter- est from date of judgment, May 25, 1878, to April 12, 1892 (paid July 9, 1890), one thousand three hundred and fourteen dollars and twelve cents," with proper affidavit attached, is sufficient to withstand a demurrer, the remedy sought being on the im- plied promise growing out of the pay- ment of the judgment by the surety. Hopewell v. Kerr, 9 Ind. App. 11, 36 X. E. 48. ^'Peden v. King, 30 Ind. 181. Where a claim against a decedent's estate, by a surety, for money paid on a judgment on account of his suretyship, is not sufficient to consti- tute a claim for subrogation, yet it may state facts sufficient to consti- tute a good cause of action for the recovery of money so paid, and, as such, be subject to the plea of the six years' statute of limitations. Hopewell v. Kerr, 9 Ind. App. 11, Z(i X. E. 48. A claim for the allowance of a legacy may be presented in the court having probate jurisdiction as a claim against the estate, but if the payment of all debts against the es- tate is not alleged, some reason for appealing to the court for the estab- lishment of a legacy must be shown, and also some wrong on the part of the administrator. Fickle v. Snepp, 97 Ind. 289, 49 Am. Rep. 449n ; Hol- land v. Holland, 131 Ind. 196, 30 N. E. 1075. 404 INDIANA PROBATE LAW. § 261 nary rules of pleading, but the statement of the claim must con- tain facts enough to show that the estate of the decedent is law- fully indebted to the claimant. The statute requires such a state- ment of facts as will show a legal liability on the part of the estate, and as will with reasonable certainty, indicate to the execu- tor or administrator of the estate what he is called upon to meet." Indefiniteness and uncertainty in the statement may be aided or cured by the affidavit which must accompany it,^" or, if the claim is embodied in the affidavit instead of a separate statement, it will be sufficient." A statement of a claim based upon a promissory note which was so mutilated that the signature of the decedent did not fully appear thereon is insufficient that does not aver that the claimant was innocent of the mutilation, or explain fully how such mutila- tion occurred. The filing of a copy of the mutilated note only is not sufficient.®' § 261. When estate liable on covenants. — A covenant for the payment of rent, whether it be made by the grantee of lands in fee, reseiwing rent to the grantor, or by a lease for a term, be- longs to that class of covenants which are annexed to, and run with, the land. The land itself is the principal debtor, and the covenant to pay rent is the incident. It follows the land upon which it is chargeable, into the hands of the assignee,^^ and the administrator of a deceased tenant cannot, by selling or assign- ing the lease, relieve himself or the estate he represents, from the obligation to pay the rent which accrues after the death of the lessee.^* " Leimgruber v. Leimgruber, 172 256, 49 X. E. 361 : Stewart v. Small, Ind. 370, 86 N. E. 12>, 88 N. E. 593; 11 Ind. App. 100, 38 N. E. 826. Hyatt V. Bonham, 19 Ind. App. 256, ''Brown v. Sullivan, 3 Ind. App. 49" N. E. 361; Stanley's Estate v. 211. 29 X. E. 453. Pence, 160 Ind. 636, dd N. E. 51, 67 '= McCulloch v. Smith, 24 Ind. App. N. E.' 441 ; McCulloch v. Smith, 24 536, 57 N. E. 143, 79 Am. St. 281. Ind. App. 536, 57 N. E. 143, 79 Am. ""Van Rensselaer v. Bonesteel, 24 St. 281; Taber v. Zehner, — Ind. Barb. (N. Y.) 365. App. _, 93 X. E. 1035. ** Carley v. Lewis, 24 Ind. 23 ; Will- ^^ Hyatt V. Bonham, 19 Ind. App. iams Exrs., 1753. § 262 CLAIMS AGAINST ESTATES. 405 A covenant in a deed of warranty or in a lease to pay rent, broken before the death of the warrantor, furnishes a cause of action for its breach, against the estate of the deceased war- rantor.*^ Such claim, however, when filed against the estate, should show how the breach occurred.®*^ As against his heirs the whole of a decedent's property, both real and personal, is subject to the payment of his debts and lia- bilities ; therefore, a claim for damages arising upon a breach of a covenant of warranty made by a decedent in his lifetime is en- forcible against his estate." But where the claim for damages for breach of a covenant of warranty accrues after the final set- tlement of the estate of the covenantor, such claim may be recov- ered from his heirs.** § 262. Contingent claims. — A contingent claim is where the liability depends upon some future event, which may or may not happen, and therefore makes it now wholly uncertain whether there ever will be a liability.^® The rule is that contingent claim» are not enforcible against executors or administrators after they have fully administered the estate without any notice that such claims have become absolute. Claims of this character may usually be enforced against the heirs and distributees to the extent at least of the property they have received from the decedent. If, however, such claims be- come absolute and certain before the estate is finally settled, the '■'Townsend V. Morris, 6 Cow. (N. ^Woodford v. Leavenworth, 14 Y.) 122; Greenleaf v. Allen, 127 Ind. 311; Hartman v. Lee, 30 Ind. Mass. 248. In Gibbs v. Ely, 13 Ind. 281. If a breach of covenant occurs App. 130, 41 N. E. 351, it was held before final settlement of the estate, that where a claim against a dece- a claim for damages therefor may be dent's estate for a breach of cove- filed against the estate, nant in a deed discloses that the de- " Hartman v. Lee, 30 Ind. 281. ceased, instead of giving possession ^ Whittem v. Krick, 31 Ind. App. under the deed, retained possession 577, 68 N. E. 694; Blair v. Allen, 55 himself, and which states the amount Ind. 409. of damage sustained by the claimant ^ Sargent v. Kimball, 37 Vt. 320 ; by reason of such breach, is good. Austin v. Saveland, 77 Wis. 108, 45 Such claim need not fulfill all the re- X. W. 955 ; Hantzch v. Massolt, 61 quirements of a regular complaint. Minn. 361, 63 N. W. 1069. 406 INDIANA PROBATE LAW. § 262 executor or administrator must take cognizance of them as they do other debts of the decedent.*^" The claim of a surviving partner against the estate of the de- ceased partner for contribution for losses sustained by the firm is contingent until the firm business is fully settled and the partner- ship assets converted into money and the firm debts paid." A claim based on a bond where the default does not occur until the time for presenting claims is past is contingent;"- also where an assessment is called for on the unpaid capital stock in a cor- poration after the final settlement of the estate, where it was un- certain before such settlement was made whether such assessment would ever become necessary and if so, when.''^ In some of the states the statute provides for the presentation of contingent claims before they become absolute, and the court may, if sufficient cause appear, order the executor or adminis- trator to retain a sufficient sum to pay such claims in full or pro rata as the assets of the estate will justify providing that the contingency, which will make such claim absolute, happens with- in a reasonable time. Such rule as this tends, however, to delay the settlement and distribution of the estate. Our statute only seems to cover certain classes of contingent claims, and in so far as it extends it specifically provides that the final settlement of the estate shall not be delayed by the allowance of the class of claims to which it applies. This statute reads as follows : If the decedent be a surety only in any joint or joint and several contract, or in any judgment founded thereon, his estate shall not be liable for the payment thereof unless it be shown that the principal is a nonresident of this state or is insolvent : Provided, That although the principal be a resident of this state and his insolvency be proved, neverthe- less the claim may be allowed against the estate provisionally, to be paid on subsequent proof of the diligent prosecution of the principal to insolvency, or that such prosecution would not have *" Woerner Am. Law Admin., § 394. ''- State v. Buck, 63 Ark. 218, 37 S. "Logan V. Dixon, 73 Wis. 533, 41 W. 881. N W. 713. '^Lake Phalen Land &c. Co. v. Lindeke, 66 Minn. 209, 68 N. W. 974. 26' CLAIMS AGAINST ESTATES. 4°? availed. The final settlement of the estate shall not be delayed by reason of such allowance; but an amount of money sufficient to discharge the claim, or its pro rata share in case the estate be insolvent, mav be paid into court for that purpose. After notice to the creditor, and on proof that his demand has been paid, or that he has failed to diligently prosecute the principal, and that such prosecution would have availed, the court shall order the money reserved to be distributed to the heirs or legatees. The creditor mav, at anv time after notice to the parties interested, applv for the payment of his claim; and if it appear that he has diligently prosecuted the principal to insolvency, or that such prosecution would not have availed, the court shall order his claim to be paid.*** § 263. Charging estate with services rendered decedent.— The rule is that no one can be lawfully charged for services except upon the theory of a promise upon his part to pay for such services. But where services are rendered by one of a common family to another member of such family, the law raises no pre- sumption of compensation ; no promise to pay is implied. Such services are supposed to be prompted by a sense of love and duty; to be rendered in the nature of acts of kindness and affection between members of the common family, and without any hope of a pecuniarv compensation. In one case it is well said that ''upon this principle it is universally held in all cases where the family relation exists, whether natural or assumed, in the absence of an' express agreement, or circumstances from which an agree- ment may be fairly inferred, that no promise will be created by implication of law to pay for services upon one hand or for sup- port upon the other. This rule has its foundation in the theory that the relation repels the legal inference of contract.'"' »* Burns' R S 1908, § 2831. 456; Smith v. Denman, 48 Ind. 65; 'Marnes v. Gillen, 3 Ind. App. 472, Kettry v. Thumma, 9 Ind. App. 498, 30 X. E. 7; Ston^ v. Story, 1 Ind. 36 N. E. 919; Puterbaugh v. Puter- App ^84 27'n. E.'573; Cauble V. Ry- baugh, 7 Ind. App. 280, 33 N. E. man 26 Ind. 207; Reeves v. Moore, 4 808, 34 N. E. 611. A complamt for Ind' App 492, 31 X. E. 44; Knight v. work and labor, to withstand a de- Knight 6 Ind. App. 268, 33 N. E. murrer, must show that the services 408 INDIANA PROBATE LAW. § 263 So if it appears that the claimant was a member of the dece- dent's family and lived with and rendered services to the de- cedent, without any understanding either express of implied, that he was to be^paid for such sen-ices, no recovery therefor can be had against the estate. On the other hand, if an express agree- ment to pay is shown, or facts and circumstances from which such an agreement can be reasonably inferred, then a recovery can be had. The court in one case saying: "If the circum- stances authorized the person rendering service reasonablv to expect payment therefor by way of furtherance of the intention of the parties, or because reason and justice required compensa- tion, the law will imply a contract therefor."^'' A child who continues to live with its parents, as a member of their family, cannot recover from them, nor from their estates, for services performed in that capacity, without proof of a con- tract that they were to be paid for.**^ On the trial of a claim for services the burden is on the claim- ant to show that the services were rendered upon the request of the decedent and that there was a promise, either express or im- plied, to pay for them. No burden rests upon the estate to show that such services were rendered gratuitously.''^ Nor, on such trial, are statements made by the decedent, out of the presence of performed were not merely volun- "Oxford v. McFarland, 3 Ind. 156; tary, and must show an agreement Pitts v. Pitts, 21 Ind. 309; Hays v. to pay, or circumstances from which Seward, 24 Ind. 352. A promise by the same may be properly inferred; a parent to give to his child certain and the same is true of an account property in consideration of care and for such services filed against an es- nursing, is sufficient to rebut the pre- tate. Taggart v. Tevanny, 1 Ind. sumption that the services of the App. 339, 27 N. E. 511; Miller v. child were gratuitous. Stewart v. Miller, — Ind. App. — , 94 N. E. 243. Small, 1 1 Ind. App. 100,^ 38 N. E. "'Crampton v. Logan, 28 Ind. App. 826; Fuller v. Fuller, 21 Ind. App. 405, 63 N. E. 51; Masters v. Jones, 42, 51 N. E. 373; Hill v. Hill, 45 Ind. 158 Ind. 647, 64 N. E. 213; Eppert v. App. 99, 90 N. E. 331; Miller v. Mill- Gardiner, — Ind. App. — , 93 N. E. er, — Ind. App. — , 94 N. E. 243. 550; Hill V. Hill, 45 Ind. App. 99, 90 «^ Hedrick v. Hedrick. — Ind. App. N. E. 331; Miller v. Miller, — Ind. — , 94 N. E. 728; Hunt v. Osborn, 40 App. — , 94 N. E. 243. Ind. App. 646, 82 N. E. 933. § 263 CLAIMS AGAINST ESTATES. 409 the claimant, that he did not consider himself indebted to the claimant admissible.''^ Where the decedent lived with her son as a member of his family, and without any agreement with her that he was to be compensated for her board and care, he cannot recover therefor from her estate.^ Ordinarily, demands for boarding, clothing or educating the children of a decedent subsequent to his death are not demands against his estate, and his executor or administrator would have no right to pay such claim." The estate of a decedent is liable for services performed for his family after his death under a contract therefor made with him in his lifetime.^ A claim for medical services rendered the family of a decedent, after his death, although rendered upon the request of the admin- istrator, will not lie against his estate."* Where services have been performed in consideration of prop- erty to be conveyed, if the contract is not en forcible by reason of the statute of frauds, or otherwise, an action will not lie on the special contract, but will lie on an implied promise, a quantum meruit, or quantjam valebat.^ The statute of limitations will begin to run against a claim for services rendered a decedent from the time when such service was rendered.*^ The rule that where a complaint is based upon an implied con- °*Eppert V. Gardiner, — Ind. App. 'Wallace v. Long, 105 Ind. 522, 5 — 93 X. E. 550. N. E. 666, 55 Am. Rep. 222; Kettry ^ Xiehaus v. Cooper, 22 Ind. App. v. Thumma, 9 Ind. App. 498, 36 N. 610, 52 N. E. 761 ; Fuller v. Fuller, E. 919. A claim for work and labor 21 Ind. App. 42, 51 N. E. 373; is presumably due after the person Vaught V. Barnes, 29 Ind. App. 387, for whom the work is performed is 62 N. E. 93, 63 N. E. 864, 64 N. E. dead, although it is not essential that 623; Lewis v. Hershey, 45 Ind. App. it should be due in order to consti- 104, 90 N. E. 332. tute a valid cause of action against " Sorin v. dinger, 12 Ind. 29. an estate. Lockwood v. Robbins, 125 'Toland v. Stevenson, 59 Ind. 485; Ind. 398, 25 N. E. 455. Toland v. Wells, 59 Ind. 529. * Purviance v. Purviance, 14 Ind. ' Johnston v. Morrow, 28 N. J. Eq. App. 269, 42 X. E. 364. 327. 4IO INDIANA PROBATE LAW. § 264 tract no recovery can be had upon proof of an express contract does not apply to a statement of a claim for services filed against the estate of a decedent.^ The evidence in claims of this character in all cases should be clear, distinct and positive. It has been said that juries cannot be too cautious in scrutinizing claims of this nature, and should be careful to v^eigh all the facts. ^ § 264. Agreements to leave property by will. — A contract may be made by one, in which for certain considerations, he will, at his death, bequeath or devise to the other certain property. Such contracts, when supported by a sufficient consideration, are valid and will be upheld.'' ' Masters v. Jones, 158 Ind. 647, 64 N. E. 213. 'Brock V. Slaten, 82 111. 282; Wilkes V. Cornelius, 21 Ore. 348, 28 Pac. 135. Says the court in Disbrow v. Du- rancl, 54 N. J. L. 343, 24 Atl. 545, 33 Am. St. 678: "The proof of services, and as well of the family relation, leaves the case in equipoise from which the plaintiff must remove it, or fail." In this latter case it is also stated that this exception to the gen- eral rule of presumption of intended compensation "stands upon a reason which logically and properly must extend it to all members of a house- hold, however remote their relation- ship may be, and, indeed, even to those who, though not next of kin, stand in the situation of kindred in one household." And where an adult son was found insane, after having left his home, and then was taken to his mother's house, and there nursed and cared for by her, with the understanding that she would be compensated there- for, he being unfit to render any services in return, it was held that the presumption that the services were rendered gratuitously by the mother did not arise. Jessup v. Jes- sup, 17 Ind. App. 177, 46 N. E. 550. r.ut in some states the mere rela- tionship is held to be itself strong negative proof, and raises a pre- sumption that no compensation was to be made. Hall v. Finch, 29 Wis. 278, 9 Am. Rep. 559; Spitzmiller v. Fisher, 77 Iowa, 289, 42 N. W. 197; Bell v. Rice, 50 Neb. 547, 70 N. W. 25. In Phillips v. Sanchez, 35 Fla. 187, 17 So. 363, the court says : "The presumption that services rendered by one near relative to another, he being an inmate of the family, are rendered gratuitously, is strong or weak in proportion to the nearness of the relationship." Claims against a dead man's estate which might have been made against himself while living, are always the subject of just suspicion, and our books are full of expressions by this court of the necessity of strict re- quirement of proof and the firm con- trol of juries in such cases. In re, Mueller's Estate, 159 Pa. St. 590, 28 Atl. 491. -Cox V. Cox, 26 Gratt. (Va.) 305; Watson V. Mahan, 20 Ind. 223; Sut- 264 CLAIMS AGAINST ESTATES. 411 The contract may be enforced against the legatees and per- •sonal representatives of the testator, when the will does not con- tain the provision promised/'^ If no will is made, or if the will made proves to be void, the contract may be enforced against the heirs and personal representatives of the decedent." The evidence in support of such contracts must be definite and conclusive. It is said that "such claims are always dangerous, and when they rest upon parol evidence they should be strictly scanned." Such contract can only be enforced when it is clearly proved by direct and positive testimony, and when its tenns are definite and certain. A promise to give the claimant, as a consid- eration for services "as much as any relative he had on earth" is too indefinite and uncertain to be enforced. ^- But services that are rendered by one under an express agree- ment that they are to be compensated by a provision to be inserted in the will of the party for wliom they are to be rendered, are a ton V. Hayden, 62 Mo. 101 ; Davison V. Davison, 13 X. J. Eq. 246; Mad- dox V. Rowe, 23 Ga. 431, 68 Am. Dec. 535 ; Logan v. McGinnis, 12 Pa. St. 27; Parsell v. Stryker, 41 N. Y. 480; Shakespeare v. Markham, 10 Hun (N. Y.) 311 (contains review of cases). An instrument containing an admission of the indebtedness by the decedent, and a promise to pay after his death, will, if duly authenti- cated and introduced in evidence, support a judgment against his es- tate. Hathaway v. Roll, 81 Ind. 567; Price v. Jones, 105 Ind. 543, 5 N. E. 683, 55 xA.m. Rep. 230; Wolfe v. Wil- sey, 2 Ind. App. 549, 28 N. E. 1004; Garrigus v. Home &c. Missionary Soc, 3 Ind. App. 91, 28 N. E. 1009, SO Am. St. 262. See : Caviness v. Rushton, 101 Ind. 500, 51 Am. Rep. 759; Wright v. Jones, 105 Ind. 17, 4 N. E. 281; Roehl v. Haumesser, 114 Ind. 311, 15 N. E. 345. " Schutt v. Missionary Soc, 41 N. J. Eq. lis, 3 Atl. 398. " Alderson v. Maddison, L. R. 5 Ex. Div. 293; Hiatt v. Williams, 72 Mo. 214, 2>1 Am. Rep. 438. Where the niece of a decedent makes her home with him in consideration that he will educate, clothe and support her as his own daughter, and make her an heir to his estate, and he dies without making any provision for her, by will or otherwise, the agree- ment is void under the statute of frauds ; but it rebuts the presumption that the services were rendered grat- uitously, and an action will lie on a quantum meruit to recover their value. In such case, the value of the services performed, and not the value of the property agreed to be con- veyed, is the measure of damages. Nelson v. Masterton, 2 Ind. App. 524, 28 N. E. 731. See: Wallace v. Long, 105 Ind. 522, 5 N. E. 666, 55 Am. Rep. 222. " Graham v. Graham, 34 Pa. St. 475 ; Mug v. Ostendorf, — Ind. — , 96 N. E. 780. 412 INDIANA PROBATE LAW. § 264 sufficient consideration for such promise, and a promise based upon that consideration will make a valid contract, not affected by the statute of frauds, for a breach of which an action arises, as in case of any other breach of contract. And a claim for such services will lie against the estate of the promisor." It is not necessary that such agreement be in any particular form, and its validity is to be tested as is that of other contracts. No action can be sustained upon an agreement of this character until after the death of the promisor.^* The contract affects only such property as the decedent leaves at his death, and if a full performance has been rendered impossi- ble by the decedent in his lifetime, compensation for the services actually rendered may be recovered by the claimants.^^ In such event the measure of damages is the value of the sei'v- ices rendered and not the proportion of the estate promised. ^^ And such agreements when resting on parol, are within the statute of frauds, and to recover the terms of the contract must not only be clearly established but the claimant must also bring himself within the doctrine of part perfonnance, for unless the "Bell V. Hewitt, 24 Ind. 280; Lee The instrument was attested by only V. Carter, 52 Ind. 342. But see Cavi- one witness, and, after the death of ness V. Rushton, 101 Ind. 500, 51 Am. E. M., was filed as a claim against Rep. 759; Schoonover v. Vachon, 121 her estate. Held, that the instrument Ind. 3, 22 N. E. Ill; Miller v. El- was testamentary in its character, dridge, 126 Ind. 461, 27 N. E. 132. and, as it was not attested and sub- Where a child supports its parents scribed by "two or more competent under a contract, their estate is liable witnesses," as required, it could not for such support. Botts v. Fultz, 70 be duly admitted to probate, and that Ind. 396. it was therefore, invalid as a claim ^* Patterson v. Patterson, 13 Johns, against the decedent's estate, and (N. Y.) 379; Snyder v. Castor, 4 void and inoperative for any purpose. Yates (N. Y.) 357. While in life, Moore v. Stephens, 97 Ind. 271. See: one E. M. executed a written instru- Johnston v. Griest, 85 Ind. 503. ment of the following purport : "At ^^ Robinson v. Raynor, 28 N. Y. 494 ; my death, my estate shall pay to Updike v. Ten Broeck, 32 N. J. L. treasurer," etc., "the sum of two 105; Neal v. Gilmore, 79 Pa. St. 421. hundred dollars, the interest of which "Graham v. Graham, 34 Pa. St, is to be used for the benefit of," etc. 475. .« 26- CLAIMS AGAINST ESTATES. 413 claimant has performed his part of the contract he has no stand- ing in court.'' . t „„ The failure of the testator to make a bequest, in favor of one who rendered senices to him upon a promise that such services should be paid for by such bequest, renders his estate liable for the value of such services." Such contract will be scanned closely and very satisfactory oroof of the fairness and justness of the transaction should be required, and specific perfomance will not be decreed when any material part of the terms or conditions are uncertain . \ promise to "remember" a person in one's will, tobe a binding promise, must be based upon a valid considerat.on.- § 265 Disposition of claims founded on joint contracts.— It was the rule of common law that one bound jointly, but not severally, with another upon a promissory note or other wntten contract was. at his death, absolutely discharged from all liability on such note or contract, and the surviving joint maker or makers on such instrument were alone responsible." This principle or rule of law has not, however, been recognized m Indiana or manv vears. As early as 1831 it was provided by statute tha the personal representatives of a deceased joint obligor should be iiable to an action at law in the same manner as if the obligation were joint and several.'^ And by legislative enactment June i,. 18=;-' the estate of any deceased joint obligor or promisor was mad^ liable for its proportionable part of ^^hatever was due on anv joint contract or judgment founded thereon.-' Lnder these .Ico. V Cox, 26 Gratt. (Va.) =■ Gel.y v. Binsse, 49 N. Y^ 385, 10 305 'Rhodes v.- Rhodes, 3 Sandfd. A-.. Rep. 379. Woo v. J^^, « V °;;;^;:in. SC... 15 r„d. Sla/ef ;..^^r9 Ho^w. (U. S. S3, Ann q4 44 X E 766; Woods v. 13 L. ed. 56, FicKers^in v iZ2 19'lnd. App. 364, 46 N. E. 15 Wall. (LL SO HO. 21 L. ed. 119. 384; Alerding v. Allison, 170 Ind. ^ %'f''^- ^^\,^ §70 Prior 9^? R^ \ E 1006 127 Am. St. 363n. =^ R. S. 1852, p. ^6Z, S /u. ''"Mundorff rKUbcurn, 4 Md.459; .o the adoption o«.*- -'■- ^ '- Nichols V. Williams. 22 N. J. E,. 63; ecu.or or ^^^^ff^-^^^ ^f „i^h Wri.h. V Wright, 31 Mich. 380. jo.ned m a su.t as a defendant w.tn "purviance v. Pnrviance, 14 Ind. others, when the decedent, tf In.ng, ^pp 26r42 X. E. 364. would have been a proper patty. 414 INDIANA PROBATE LAW. § 265 Statutes it was held that a joint action could be maintained against the other joint obligors or promisors and the personal repre- sentatives of the deceased ; or the claim might be filed for allow- ance against the estate of such deceased joint obligor or promisor and his proiX)rtionable share due on such contract, recovered against his estate ; or if it were shown that such deceased obligor or promisor was the principal upon any such joint obligation the whole amount due on such contract might be recovered from his estate. Separate suits might be maintained against the other co- obligors or promisors and their proportionable share recovered. The plaintiff had his election to proceed under either method.-'* But the present statute so far changes the above rule as to for- bid the bringing of a suit in the ordinary form against the per- sonal representatives of any deceased joint obligor or promisor on any joint obligation or contract signed by such decedent; and provides that the enforcement of any such joint contract, or the collection of any joint judgment founded thereon, against the estate of such decedent, shall be by filing the claim for allowance in the regular manner against such estate. This statute makes all joint contracts, for all practical purposes, several as well as joint, and makes the estate of any deceased joint obligor or promisor now liable for the entire amount of such contract, or judgment founded thereon, as if such contract were joint and several. The whole amount due. instead of a proportionable share, must now be allowed against such estate. Upon the death of the principal, in order to protect the interests of the sureties in any joint obliga- tion not yet due, it is absolutely necessary to file the claim against his estate and postpone the settlement of the estate until the Braxton v. State, ex rel., 25 Ind. 82; Braxton v. State, ex rel., 25 Ind. 82 r Stanford v. Stanford, 42 Tnd. 485; Prichard v. State, ex rel., 34 Ind. Corbaley v. State, ex rel., 81 Ind. 137; Myers v. State, ex rel., 47 Ind. 62. The finding and allowance of a 293; Moore v. State, ex rel., 49 Ind. joint obligation as a claim against 558; Milam v. Milam, 60 Ind. 58; the estate of one of the makers does Fiscus v. Robbins. 60 Ind. 100; not prevent a suit against the other Wright v. Jordan, 71 Ind. 1; McCoy makers. Greathouse v. Kline, 93 Ind. v. Payne, 68 Ind. 327; Redman v. Marvil, 1Z Ind. 593; Corbaley v. 598. 'Weyer v. Thornburg, 15 Ind. 124; State, ex rel., 81 Ind. 62 § 265 CLAIMS AGAINST ESTATES. 4^5 maturity of the obligation, othei-wise the sureties would have no remedy. It is in favor of the interest of the sureties to have such claim allowed against a principal's estate as soon as admissible, in order that they may receive the benefit of what is realized from the estate; and as an inducement to the claimant to procure his claim to be so allowed, such allowance shall not release the sur- eties from liability; for if the contract is made several as to the estate it must necessarily be several as to the survivors. If the claim can be filed against the estate of the principal, and all real- ized thereby that can be, it diminishes to that extent the amount that the sureties are liable for. This statute also creates an ex- ception to the rule that a judgment against a part of joint obligors merges the obligation and releases the other obligors by making the obligation, after the death of one of the obligors, several as well as joint. "^ It is provided by statute that when two or more persons shall be jointly liable on a contract or judgment, and either of them shall die, his estate, executors and administrators shall be liable for the failure to perform the contract and for the payment of the judgment, to the same extent and in the same manner as if such contract or judgment were joint and several.-*' But no action shall be brought by complaint and summons against any executor or administrator and any person or persons, or his or their legal representatives, upon any contract executed jointly, or jointly and ='Greathouse v. Kline, 93 Ind. 598. against his estate. ^lilam v. Milam, An administrator or executor cannot 60 Ind. 58. be joined as a defendant in an action =" Burns' R. S. 1908, § 654. Under on a joint obligation executed by the this statute an ordinary suit cannot decedent and others. Norwood v. be commenced by complaint and Harness, 98 Ind. 134, 49 Am. Rep. summons against an executor or ad- 739; State v. Cunningham, 101 Ind. ministrator and any other person on 461. If an action is pending against a joint contract of the decedent, a decedent at his death, the suit may State v. Cunningham, 101 Ind. 461. be continued against his personal But if the administrator should en- representatives. Clodfelter v. Hulett, ter a general appearance to such suit, 92 Ind. 426. On the death of the if begun, he waives any right to principal in a joint contract, such plead its abatement. Morrison v. contract may be filed as a claim Kramer, 58 Ind. 38; Frazer v. Boss, 66 Ind. 1. 4l6 INDIANA PROBATE LAW. § 266 severally, by the deceased and such other person or persons, or upon any joint judgment founded thereon; but the holder of said contract or judgment shall enforce the collection thereof against the estate of the decedent only, by filing his claim in the manner required by law.-' And every contract executed jointly by the decedent with any other person or persons, and every joint judg- ment founded on such contract, shall be deemed to be joint and several for the purpose contemplated in the last preceding section ; and the amount due thereon shall be allowed against the estate of the decedent as if the contract were joint and several.-* Before the enactment of these statutes the proper practice was to make the executor or administrator a party in an action against the survivors in any joint contract, but these statutes change the rule.=^« § 266. When decedent is co-surety. — If the decedent be boi3nd as a co-surety in any joint or joint and several contract, or judgment founded thereon, his estate shall, in case of the non- residence or insolvency of the principal, as aforesaid, be liable only for its proportional part of the debt, according to the number of solvent sureties resident in the state. ^" As between the estate of the deceased surety and a co-surety, the estate is liable only for its proportionate share. ^^ The mle, as established in this state, is that the death of a -' Burns' R. S. 1908, § 2829. complaint. It was necessary, how- ■^ Burns' R. S. 1908, § 2830. ever, for the plaintiff to aver that he ^ Norwood V. Harness, 98 Ind. 134, had paid money for the benefit and 49 Am. Rep. 739; State v. Cunning- use of the decedent, or of his estate, ham, 101 Ind. 461. in the discharge of a duty or obli- ^^ Burns' R. S. 1908, § 2832. gation resting upon him. It was also ^^ Thornburg v. Allman, 8 Ind. necessary to aver what that obliga- App. 531, 35 X. E. 1110. In this tion was. * * * To prove merely case it is said : "This action is not a that the appellee paid the money suit on the note, but is a suit to re- would not establish his right to re- cover money paid by a surety for the cover. He must prove that he paid use and benefit of his principal. It the money for the benefit of the de- was not necessary to make the note cedent or the estate." or a copy thereof an exhibit to the § 267 CLAIMS AGAINST ESTATES. 417 surety does not discharge his estate from liability upon his joint contracts.^" The liability under this section of the statute is contingent on the non-residence or insolvency of the principal debtor and is confined to that part of the debt as proportioned according to the number of resident solvent sureties. And when one, who as co- surety with a decedent has paid the debt and holds a lien against such decedent's real estate for a contributive share of such debt he can either file his claim therefor against the estate of such dece- dent or enforce his lien against the land after the final settlement of the estate. ^^ The question of suretyship may be determined by a cross-com- plaint in an action on a claim. ^* § 267. Duty of clerk as to claims, etc. — The clerk of the probate court is required to keep in his office a book as a general entry, claim and allowance docket, and on the right hand page of such docket under the head of the estate the clerk shall keep a record of the claims filed against such estate showing the number of the claim, the name of the claimant, the date when the claim was filed, the date of its allowance and the amount of such allowance, and such other information as may be necessary. The clerk shall number the claims as filed from one upward and the claim shall bear the number given it in all subsequent proceedings in the estate. ^° If a claim so filed is secured by a lien the clerk shall note upon such docket the nature of the lien. The filing and entry of a claim by the clerk as required by this statute is the commencement of the action upon such claim, of which the ex- ecutor or administrator is bound to take notice without summons or process of any kind.^*' Nor is it necessary in filing a claim against an estate to make formal parties thereto of the executor or administrator,®^ although the action must be prosecuted == McCoy V. Payne, 68 Ind. 327; ''Burns' R. S. 1908, § 2835. Hudelson v. Armstrong, 70 Ind. 99. '" Burns' R. S. 1908, § 2836. "" Beach v. Bell, 139 Ind. 167, 38 ""Taggart v. Tevanny, 1 Ind. App. N. E. 819. 339, 27 N. E. 511; Bowman v. Citi- " Bowman v. Citizens Xat. Bank, zens' Xat. Bank, 25 Ind. App. 38, 56 25 Ind. App. 38, 56 N. E. 39. X. E. 39. 27— Pro. Law. 41 8 INDIANA PROBATE LAW. § 268 against such personal representative throughout all its stages, it being said that "the estate of a dead man cannot be a party to a suit without some representative."^* The clerk being a public officer, in the absence of any proof to the contrary, it will be presumed that he did what the law re- quired him to do, and that a claim was properly entered, etc., when it appears on the docket of the trial court. ^'* When a claim shall have been allowed or adjudged by the court in favor of the claimant, the clerk of the court shall enter the amount of the claim and date of allowance or judgment, under the proper heading in the allowance docket, and immediately opposite the entry of tlie claim on tlie claim docket.'"^ § 268. Duty of executor or administrator as to claims. — When claims are properly entered and docketed by the clerk the law makes it the duty of even- executor or administrator to in- quire into the correctness of all claims filed against the estate that he represents, and to make all available defenses thereto, and if he fails so to do, he shall be liable on his bond, at the suit of any person interested in the estate, for all damages sustained by the estate in consequence of such neglect.*^ The statute of 1843 §'^ve to an administrator the right to admit the justness of claims against the estate of his decedent and allow the same if found correct, but this power was taken from him by the statute of 1852, and a trial of every claim on its merits was required. The litigation and costs occasioned by this method created so much disaffection that the law was corrected, and now an executor or administrator is authorized to admit and allow all claims he may deem just and correct.*^ The statute as it now stands prescribes their duties in reference ^ Welts V. Wells, 71 Ind. 509; Mc- lam v. Stockwell's Estate, 33 Ind. Conahey's Estate v. Foster, 21 Ind. App. 620, 71 N. E. 911. App. 416, 52 N. E. 619; Dunn v. Es- ^Sanders v. Hartge, 17 Ind. App. tate of Evans, 28 Ind. App. 447, 63 243, 46 N. E. 604. N. E. 36 ; Whisler v. Whisler, 162 '' Burns' R. S. 1908, § 2846. Ind. 136, 67 N. E. 984, 70 N. E. 152; "Burns' R. S. 1908, § 2840. Estate of Guernsey v. Pennington, 33 *^Lasure v. Carter, 5 Ind. 498. Ind. App. 119, 70 N. E. 1008; Dal- § 268 CLAIMS AGAINST ESTATES. 419 to claims in detail as follows: Executors and administrators of estate shall, on the first Monday of Januar>% March, May, July, September and November of each year, examine all claims upon the claim and allowance docket in the proper court and filed against the estate represented by them. All such claims which have thus been so filed for more than thirty (30) days shall either be allowed or disallowed by such executor or administrator at the next succeeding bi-monthly examination, which action shall be expressed in writing on the margin of such claim and allow- ance docket opposite such claim. If any claim is so disallowed in toto, it shall at once be transferred to the issue docket and stand for issue and trial as other causes where return day has passed. • Should such executor or administrator fail, or refuse to either allow or disallow any such claim, after the same has been filed for more than sixty days, as herein provided, then the clerk of such circuit court shall at once transfer such claim to and enter the same upon the issue docket, where the same shall stand for trial as other causes ; and in case the court, upon final hearing of such action, allows in full the claim which such executor or administrator has neglected or refused to either allow or disallow, then the costs of such action shall be taxed against such executor or administrator as an individual. Or if the executor or admin- istrator, after investigating the merits of such claim shall be of the opinion that the estate is liable for a part thereof only, he shall state in writing on the margin of such claim and allowance docket, opposite such claim, his offer to allow a certain amount of <=uch claim, and if the claimant desires to accept the offer so made, in full settlement of his claim, he shall note his acceptance thereof on said docket. If any such claim is not so allowed in full, or if any such offer to allow in part is not so accepted before the first Monday of the month next following the action thereon by said executor or administrator, then such claim shall be trans- ferred to and entered upon the issue docket of the court and shall stand for trial, as other civil actions pending therein ; and if, upon the trial of any such claim on which an offer to allow a part has been so made, the claimant fails to recover more than the 420 INDIANA PROBATE LAW, § 269 amount offered, such claimant shall he liahle for all costs occa- sioned after the making of such offer: Provided, That the court may, in its discretion, require further proof as to any claim, not- withstanding- the executor or administrator may have allowed the claim in the manner provided in this act/^ Under this statute, prior to its amendment in 1903, before a claim could be transferred to the issue docket of the court it must have been filed and entered by the clerk upon the allowance docket ten days before the next ensuing term of court and if not allowed by the executor or administrator before the last of that term, it stood for trial at the ensuing term of court there- after." § 269. Same — Continued. — A claim should not be allowed which shows upon its face that it was barred by the statute of limitations prior to the grant of administration." But if such claim has become barred after the administration granted, it may be allowed and paid."^ Claims may be allowed by an executor or administrator without inquiring whether there are assets sufficient to pay them, and without any regard as to whether or not they are preferred/' But he will be held liable on his bond to one interested for an injury arising from his failure to resist an unjust or unfounded claim against the estate.*^ The allowance of a claim is conclusive as to the personal prop- erty of a decedent, but it only creates a prima facie right against his real estate.*^ 3urns „ R. S. 1908, § 2837. Gorham, 119 Ind. 436, 21 N. E. 1096. Scott V. Dailey, 89 Ind. 477. '' Smith v. Cuyler, 78 Ga. 654, 3 S. « Patterson v. Cobb, 4 Fla. 481 ; E. 406. Trotter v. Trotter, 40 Miss. 704. '"Cole v. Lafontaine, 84 Ind. 446; '" Payne v. Pusey, 8 Bush (Ky.) Jackson v. Weaver, 98 Ind. 307. The 564; Byrd v. Wells, 40 Miss. 711. allowance of a claim by an adminis- " Fickle V. Snepp, 97 Ind. 289, 49 trator is not conclusive upon the heirs Am. Rep. 449n ; Goodbub v. Hornung, in a proceeding to sell lands to pay 127 Ind. 181, 26 N. E. 770. The rec- debts. Cole v. Lafontaine, 84 Ind. ord of an allowance of a claim is 446. If an improper claim be allowed prima facie evidence of the validity against an estate the heirs or devisees and amount of the claim. Smith v. may bring an action to have the al- § 269 CLAIMS AGAINST ESTATES. 42 1 If a claim filed shows the right of action to be in a third party it should not be allowed. '° An executor or administrator may legally allow a claim which he finds, on investigation, to be correct, although it may not have been properly filed. ^^ A claim cannot be allowed in a proceeding to distribute the surplus. In apportioning such surplus, debts due the estate from the distributees may be taken into consideration, but such debts are not claims against the estate.^" But an executor or administrator cannot allow his own claim due him from the estate of his decedent. Such claim must be transferred to the issue docket and set down for trial as other adversary cases. ""^ And this rule of law is applicable to any claim of an executor or administrator, whether held by him in his per- sonal right, or as an executor or administrator of another estate, or as guardian or trustee in any matter wherein, ordinarily, he mio-ht sue in his own name. It is not to be supposed that the creditor, by becoming administrator of the estate, should aban- don his claim, or be deprived of all means of enforcing it, with- out resigning his tmst. He cannot allow it ; and it is therefore lowance set aside. Bell v. Ayres, 24 shows a cause of action in favor of Ind. 92 ; Lancaster v. Gould, 46 Ind. some person other than the claimant, 397. And where an administrator it is bad on demurrer for want of had his own claim allowed as a pre- facts. Walker v. Heller, 104 Ind. ferred claim the creditors are not Zll , 3 X. E. 114. bound, and may question such allow- '' Lancaster v. Gould, 46 Ind. 397. ance. Jenkins v. Jenkins, 63 Ind. 120. " Carroll v. Swift, 10 Ind. App. ^ Martin v. Asher, 25 Ind. 237. 170, Zl N. E. 1061. In this case, the Where the claim is filed against an court says: "The court may take estate other persons cannot be joined into consideration debts due the es- as defendants. Noble v. McGinnis, tate from the distributees, but such 55 Ind. 528. And where a claim has debts are not claims against, but in been so filed, then dismissed by the favor of, the estate." claimant and refiled against the ad- "" Hubbard v. Hubbard, 16 Ind. 25 ; ministrator alone, it is not a continu- Chidester v. Chidester, 42 Ind. 469; ation of the suit but the beginning of Collins v. Tilton, 58 Ind. 374; Bent- a new action. Niblack v. Goodman, ley v. Brown, 123 Ind. 552, 24 N. E. 67 Ind. 174. Where the statement 507. 422 INDIANA PROBATE LAW. § 27O necessary that such a claim should be placed upon the issue docket for trial. ^^ The English doctrine of retainer, by which an executor or ad- ministrator is pemiitted to retain in his hands from the assets of the estate sufficient to pay any debt due him from the decedent, in preference to all other creditors of equal degree, has no place in the law of this state. A claim should not be allowed by an administrator, on the un- supported oath of the claimant, when he has had warning that the claim is unjust. ^" Where there are two or more administrators, the allowance of a claim against the estate by any one of them is the act of the others, and is binding upon all."""" If the administrator does not deem the claim a just one, or if some person having a legal right to do so, objects to its allowance, or if, for anv reason, he is unwilling to allow the claim, he should reject it, and remit the claimant to his action at law, or other pro- ceeding allowed by statute to establish it.^' § 270. Effect of allowance by executor or administrator. — The allowance of a claim, as provided for in this act. shall, as between the claimant and the executor or administrator, be opera- tive, and as an adjudication of the validity and amount of the claim, and presumptive evidence thereof, in any proceeding by the executor or administrator for the sale of the real estate of the decedent to discharge the liabilities of his estate.^^ ''Wright V. Wright, 12 Ind. 149; termine the question of preference, Jenkins v. Jenkins, 63 Ind. 120. tliat being a matter to be settled on a "^ McWhorter v. Donald, 39 Miss, distribution of the assets of the es- 779, 80 Am. Dec. 97; Egerton v. tate. Goodbub v. Hornung, 127 Ind. Egerton, 17 N. J. Eq. 419. 181, 26 N. E. 770; Jenkins v. Jenkins, "■■ Willis V. Farley, 24 Cal. 491. 63 Ind. 120. If heirs of a decedent " Woerner Am. Law Admin., § 390. assist in defending a claim, they will "' Burns R. S. 1908, § 2838. If a be estopped from disputing the cor- claim is just it may be allowed, al- rcctness of an order allowing the though it is not in an itemized form, same in a proceeding to sell lands to Lancaster v. Gould, 46 Ind. 397. In pay debts. Smith v. Gorham, 119 the allowance of a claim by an execu- Ind. 436, 21 X. E. 1096. tor or administrator he cannot de- § 2/0 CLAIMS AGAINST ESTATES. 423 The statute does not give to the mere admission and allowance of a claim against a decedent's estate, by his executor or admin- istrator, the force and effect, or any of the qualities, of a judg- ment on such claim. The only effect given by such admission or allowance by an executor or administrator is to stop litigation and costs on such claim; for if the claim is not thus admitted within the time limited, it must be transferred to the issue docket of the court and stand for trial. Such admission of a claim is not final as a judgment thereon would be ; for "the court may, in its discretion, require further proof as to any claim, notwithstand- ing the executor or administrator may have admitted the claim."''" The allowance or rejection of a claim, though not a judgment in the strict sense of the term, yet operates as an adjudication between the claimant and the executor or administrator of the controversy between them, and is binding upon the estate and its representatives as well as upon the claimant.''" The rule is that the allowance of a claim by an executor or administrator, and the approval of such allowance by the proper court, binds all the parties thereto and their privies, but as against those who are neither parties nor privies, such action is only prima facie evidence of indebtedness, and they may go behind such allowance and show that the claim was not a proper charge against the estate."'^ A judgment operates as a merger of the cause of action upon which it is rendered, **- and an allowance made by the court upon a claim against the estate of the decedent has the full force and effect of a regular judgment, therefore the assignment of a note after it has been allowed as a claim against an estate transfers nothing to the assignee. A claim so allowed has, in legal con- ''Fiscus V. Robbins. 60 Ind. 100. v. Hodge, 5 Tex. 487; Laidley v. ""Boyl V. Simpson, 23 Ind. 393; Kline, 8 W. Va. 218; Eccles v. Dan- Maddox v. Maddox, 97 Ind. 537; iels, 16 Tex. 136; In re, Estate of Bentley v. Brown, 123 Ind. 552, 24 N. Schroeder, 46 Cal. 304; Marshall v. E. 507; LaPorte v. Organ, 5 Ind. Rose, 86 III. 374. App. 369, 32 X. E. 342. »= Cissna v. Haines, 18 Ind. 496; ''^ State V. Ramsey County, 25 Minn. Marshall v. Stewart, 65 Ind. 243. 22; Stone v. Wood, 16 111. 177; Neill 424 INDIANA PROBATE LAW, § 2/1 templation, ceased to exist. "^ And the record of such allowance is prima facie evidence of the validity and amount of the claim."* And although the form of the order making an allowance against an estate differs from an ordinary judgment on which ex- ecution may issue, yet it is in all essentials an adjudication as to the validity and amount of the claim, and is to that extent a judg- ment and binding upon the estate and the representatives of the estate, the executor and administrator."'' § 271. Claim of executor or administrator — How allowed. • — The allowance of a claim due the executor or administrator from the decedent stands on the same footing as the claim of any other creditor, except that it should be more closely scrutinized."" While the estate of a decedent is in contemplation of law a legal entity, yet it cannot be a party to a suit without some rep- resentative, and the suit shall be prosecuted in the name of the representative as such. It is, therefore, better form for an ex- ecutor or administrator of such estate to file a claim against the estate in his individual capacity against himself in his representa- tive capacity."^ An executor or administrator cannot allow a claim of his own against the estate he represents. It would be in violation of a plain principle of law in reference to parties, as well as plain common sense, to require him to act in the double capacity of sole plaintiff, urging his individual interests, and sole defendant, resisting himself, and at the same time expecting him to act as efficiently and honestly in the one character as in the other. Such claim must pass upon the issue docket and be set down for trial, and tried as any other adversaiy case ; and in set- ting such claim down for trial on the issue docket there must be an adversary party named, either in his complaint or by the court. "^ '' McClure v. McClure, 19 Ind. 185 ; Ind. 537 ; Boyl v. Simpson, 23 Ind. Jenkins v. Jenkins, 63 Ind. 120; 393. Brown v. Darrah, 95 Ind. 86. ''"Wood v. Rusco, 4 Redf. (N. Y.) "Smith V. GorhanT, 119 Ind. 436, 21 380; Wall's Appeal, 38 Pa. St. 464. N. E. 1096. " Wells v. Wells, 71 Ind. 509. '^ Bentley v. Brown, 123 Ind. 552, ^ Hubbard v. Hubbard, 16 Ind. 25 ; 24 N. E. 507; Maddox v. Maddox, 97 Devol v. Halstead, 16 Ind. 287; Chid- § 271 CLAIMS AGAINST ESTATES. 425 The statute provides that whenever a claim in favor of an executor or administrator against the estate he represents, which accrued before the death of the decedent, shall be filed against said estate, with the affidavit of the claimant attached, thirty days before the commencement of the term of said court during which the claim is to be presented for allowance, the judge of said court shall represent said estate and shall examine into the nature of said claim, and if the same be, by said court, deemed just and risht, said court shall allow said claim, and order the same paid out of said estate, as other claims of the same class, and said court may, in its discretion, examine under oath such executor or administrator, or any other person, touching said claim, and if such court shall be of the opinion that the interests of said estate will be promoted by active opposition to such claim, it shall be the duty of such court to appoint a practicing attorney of said court to represent said estate, and the same pleadings, issues and trial may be had as in other claims, and such court shall allow to such attorney, to be paid out of said estate, such fees for his services as may be deemed by said court just and right, and no attorney shall be allowed compensation for representing the estate of a decedent in defense of such a claim, except when appointed in pursuance of this act/'^ This adjustment and allowance by the court bind the repre- sentatives of the estate, and are an adjudication as to the validity and amount of the claim in favor of the administrator, and are equally as binding upon such administrator and subsequent ad- ministrators of such estate as would be the allowance of a claim in favor of a third party.'" ester v. Chidester, 42 Ind. 469; Stan- interests of the estate, and after in- ford V. Stanford, 42 Ind. 485; Wright vestigation of the merits of the claim, V. Wright, 72 Ind. 149. the attorney reported to the court an ^ Burns R. S. 1908, § 2839. amount agreed upon to be allowed in '" Bentley v. Brown, 123 Ind. 552, settlement, and the court approved of 24 N. E. 507. Where an administra- such adjustment and allowed the tor files a claim in his own favor, claims to the amount agreed upon, against the estate he represents, and the adjustment and allowance by the the record shows that the court ap- court bind the representatives of the pointed an attorney to represent the estate, and are an adjudication as to 426 INDIANA PROBATE LAW. § 272 § 272. Interested parties may resist allowance. — In all cases where a claim is filed against the estate of a decedent, and has been allowed by the executor or administrator, any person interested in the estate, upon written petition to the court, shall be allowed at his expense to defend such claim, notwithstanding such allowance; but such petition must be filed with the clerk of tiie proper court within sixty days after the claim has been by such executor or administrator indorsed, allowed on the claim docket and before the final settlement of such estate, and such petition shall be accompanied by a bond with sufficient surety, payable to the executor or administrator, to be approved \)y the clerk, conditioned for the payment of the costs that shall be adjudged against him; if the amount of the claim be reduced ten per cent, on such trial, the court shall order the costs and all ex- penses incurred by such persons in contesting such claim, paid out of such estate; but in case of failure to so reduce it, such per- son contesting such claim shall pay all costs occasioned the estate thereby.'^ Nothing in this statute shall be construed to prevent the heirs or their grantees from contesting the allowance of a claim, in a proceeding by the executor or administrator to sell the real estate of the decedent. While the judgment or allowance of the claim is conclusive as to the personal estate, it is only prima facie suffi- cient to charge the real estate, and is not conclusive against the heirs or their grantees. Under such a proceeding the heirs and their grantees are entitled to defend against a claim, whether the claim has been allowed or not.'- the validity and amount in favor of 110 Ind. 428," 11 N. E. 8, 12 X. E. 304. such administrator, and is equally The owner of lands liable to be sold binding upon such administrator, and to pay the debts of the decedent may subsequent administrators of such es- contest claims filed against the estate, tate, as would be the allowance of a Mackey v. Ballou, 112 Ind. 198, 13 N. claim in favor of a third party. Mad- E. 715; O'Haleran v. O'Haleran, 115 dox v. Maddox, 97 Ind. 537. Ind. 493, 17 N. E. 917. "'Burns R. S. 1908, § 2844. This '- Scherer v. Ingerman, 110 Ind. section does not prevent heirs from 428, 11 N. E. 8, 12 N. E. 304; Mackey controverting claims that have been v. Ballou, 112 Ind. 198, 13 N. E. 715; allowed in proceedings to sell lands O'Haleran v. O'Haleran, 115 Ind. 493, to pay debts. Scherer v. Ingerman, 17 N. E. 917; Beaty v. Voris, 138 Ind. ^ 273 CLAIMS AGAINST ESTATES. 4^7 § 273. Proceedings when claim not allowed.— Where the creditor has properly filed and presented his claim and the ex- ecutor or administrator, for any reason, has neglected or refused to allow it. the next step is to establish the claim as a valid demand against the estate in the proper court having probate jurisdiction. This step is, so far as either the claimant or the ad- ministrator is concerned, automatic, the statute providing that it shall at once be transferred to the issue docket and stand for issue and trial.'' This statutor}^ method is simple, informal, and differs materially from the method of establishing such claims at common law. As we have shown the statute requires an executor or admm- istrator, after a claim has been filed against the estate represented by him. to investigate the merits of such claim, and if the clann is found correct, to allow the same. This is a positive duty .enjoined on him, not one to be exercised at his discretion, and if he neglects it, and a meritorious claim, through such neglect, is transt^rred to the issue docket for trial, he should be mulcted in the extra cost occasioned thereby. After the lapse of the time named in the statute, all claims which have not been allowed shall be transferred to the issue docket of the court for trial. It is necessary that a claim should be properly presented and filed, and placed upon the appearance docket of the proper court, and if it is not allowed by the executor or administrator, it shall be transferred to the issue docket of the court. Unless these pro- 265. yi X. E. 785; Willard Executors, ting or denying assets, between judg- 2^y^ ments de bonis propriis and de boms ""By these means the common-law intestatis or testatoris, and judgments Tight of preferring one creditor of quando acciderint, as well as the com- the same class over another; the right plicated formalities of enforcing of retainer for the administrator's judgments against executors and ad- own debt; the artificial system of ministrators, are swept away. ihe pleading the existence of a debt of rights of creditors are thus secured; superior dignity in bar of an inferior and executors and administrators re- one or plene administravit, or rien lieved of all responsibility except ultra in case of insufficiency of as- faithfully to present any defense sets; the marshalling of assets or se- which they may be aware of, on the curities by courts of equity; the tech- trial." Woerner Am. Law Admin., nical distinction between pleas admit- § 391. 428 INDIANA PROBATE LAW. § 274 visions of the statute have been complied with, such claim cannot be tried without the consent of the executor or administrator. He has the right to investigate and allow such claim in due order without trial/* A claim against an estate which has been properly filed and transferred to the issue docket is a civil action within the meaning of the statute authorizing a change of judge in civil cases. It is said, "a claim against an estate should no more be tried before a biased, prejudiced or interested judge, than any other civil action."'^ And in the trial of claims against estates, it has been held that a jury may be allowed. It is not allowed as a matter of right, the right depending much upon the nature of the claim. "^ In fact, as a rule, whenever they are applicable, the rules of pro- cedure in civil cases should be applied to the practice in probate matters.'^' An executor or administrator has no authority to submit a claim upon an agreed statement of facts, under the statute provid- ing for such statement.'^ If the executor or administrator enter a general appearance to a claim after it has been transferred to the issue docket he thereby waives all irregularities in the filing, entry on the allowance docket and transfer to the issue docket of such claim. ^^ § 274. Practice on transfer of claim. — When any claim is transferred for trial, it shall not be necessary for the executor or administrator to plead any matter by way of answer, except a set- oft or counter-claim, to which the plaintiff shall reply. If the executor or administrator plead any other matter by way of de- fense, the claimant shall reply thereto; the sufficiency of the state- ment of the claim or any subsequent pleading, may be tested by ■* Morrison v. Kramer, 58 Ind. 38; "' Goodbub v. Hornung, 127 Ind. Scott V. Dailey, 89 Ind. 477; Stapp v. 181, 26 N. E. 770. Messeke, 94 Ind. 423. " Henes v. Henes, 5 Ind. App. 100, "Lester v. Lester, 70 Ind. 201. 31 N. E. 832. But see Robbins v. '° Taggart v. Tevanny, 1 Ind. App. Swain, 7 Ind. App. 486, 34 N. E. 670. 339, 27 N. E. 511; Sherwood v. ™ Sanders v. Hartge, 17 Ind. App. Thomasson, 124 Ind. 541, 24 N. E. 243, 46 N. E. 604. 334; Hamlyn v. Nesbit, Zl Ind. 284. § 274 CLAIMS AGAINST ESTATES. 429 demurrer; and if objection be made that the assignor of a claim not assigned by indorsement is not a party to the action, leave shall be given the claimant to amend by making him a party to answer to his interest in the claim, and to sue out process against the assignor tO' answer in that behalf. And if it shall be shown to the court that any person is bound with the decedent in any contract which is the foundation of the claim, the court shall direct that the claim be amended by making such person a defend- ant in the action, and process shall be issued against and served upon him, and thereafter the action shall be prosecuted against him as a co-defendant with such executor or administrator, and judgment shall be rendered accordingly.'*' While, as has been shown in the preceding section, the executor or administrator may require such claim to be brought before the court in the mode prescribed by the statute, but he is not bound to do so ; he may make full appearance and give the court juris- diction, by pleading to an action on such claim. And where he thus waives his statutory rights and demurs to a claim, as an entirety, which consists of several distinct items, his demurrer will not be sustained if any one of such items states a good cause of action.*^ But if he is sued on a claim and process is regularly '"Burns R. S. 1908, § 2842. Proof fense, although the defense might of the execution of written instru- have been proven without pleading it. ments which are the foundation of Sheeks v. Fillion, 3 Ind. App. 262, 29 claims, and of the assignments there- N. E. 786. of, must be made, although such exe- *^ Morrison v. Kramer, 58 Ind. 38 ; cution, or assignment, is not denied Niblack v. Goodman, 67 Ind. 174; under oath. Riser v. Snoddy, 7 Ind. Stapp v. Messeke, 94 Ind. 423 ; Ginn 442, 65 Am. Dec. 740; Mahon v. Saw- v. Collins, 43 Ind. 271. If, after a jer, 18 Ind. IZ; Barnett v. Cabinet claim has been transferred to the issue Makers' Union, 28 Ind. 254; Cawoods docket, the claimant, without objec- V. Lee, 32 Ind. 44; Jennings v. Mc- tion on the part of the administrator, Fadden, 80 Ind. 531. New parties de- is permitted to amend the statement fendant can only be made where such by introducing therein an item of parties are jointly liable on a con- claim based upon facts accrued after tract with the decedent, and such con- the claim was filed in the clerk's tract is the basis of the claim. Clay- ofifice and was placed upon the docket, pool V. Gish, 108 Ind. 424, 9 N. E. upon which it is the administrator's 382. It is error to sustain a demurrer duty to allow or reject claims, the de- to an answer setting up a good de- fendant cannot, by answer in bar of 430 INDIANA PROBATE LAW. § 274 served on him in the ordinaiy manner, he may, by his special appearance thereto, and on his motion, founded on affidavit, showing that the claim sued on had never been filed in the clerk's office and placed upon the appearance docket as by law required, obtain a dismissal of the action. The statute does not authorize such a suit, but a demurrer to a claim for this reason would not be available. ^- The appearance by attorney of an executor or administrator to an action on a claim against his decedent's estate is sufficient.** To carry out the policy of the law and avoid a multiplicity of suits, the court may, under proper circumstances, order the con- solidation of claims which have been transferred for trial.-"* Not only may an ordinaiy motion for a new trial be made in case of claims against a decedent's estate, but an application for such part of the claim, raise an ob- jection, which he has so waived, to the making of such amendment. Sheeks v. Pillion, 3 Ind. App. 262, 29 N. E. 786. The court, of its own mo- tion may pass upon or determine the sufficiency of a petition to allow a claim or of exceptions to a report without any demurrer or motion be- ing filed, and exceptions taken to such action of the court presents the ques- tion for review. Goodbub v. Horn- ung, 127 Ind. 181, 26 N. E. 770. ''"Morgan v. Squier, 8 Ind. 511; Hayes v. Sykes, 120 Ind. 180, 21 N. E. 1080; Hyatt v. Mavity, 34 Ind. 415 ; Morrison v. Kramer, 58 Ind. 38. Where, after the transfer from the appearance to the issue docket, of a claim against an estate, an additional statement of the claim is made at a subsequent term, it may be used as an amendment, or second paragraph of the claim, and need not be placed on the appearance docket. Wolfe v. Wil- sey, 2 Ind. App. 549, 28 N. E. 1004. In support of a claim against an es- tate for money paid on an execution against the decedent in his lifetime,, the return on the execution, showing a payment more than six years before the filing of the claim, was offered in evidence and excluded. Held, that, if error, it was harmless. Zeller v. Griffith, 89 Ind. 80. ^ Collins V. Rose, 59 Ind. 33 ; Pres- ton V. Sandford, 21 Ind. 156. "* Patterson v. Eakin, 87 Va. 49, 12 S. E. 144; Biron v. Edwards, 77 Wis. 477, 46 N. W. 813. Where the plain- tiff filed a claim against the dece- dent's estate for services rendered her and her administrator, and on the same day filed in the same court an- other claim against the same estate based upon a contract by the terms- of which the decedent agreed to con- vey to the plaintiff certain real estate, and alleging her refusal to do so and consequent loss to the plaintiff, it was proper for the court on motion ta consolidate the two causes. See § 279, Burns' R. S. 1908. Grant v. Davis, 5 Ind. App. 116, 31 N. E. 587. See Cunningham v. Packard, 6 Ind, App. 36, 32 N. E. 334. § 2/5 CLAIMS AGAINST ESTATES. 43 1 a new trial for cause discovered after the tenn at which the claim was tried, may be had under section 589, Burns' R. S. 1908, it be- ing held that where no mode of procedure is specially provided by the probate statutes, the rules of procedure in civil causes may be followed.®^ And in such an action a claimant may appeal from a judgment against him in the trial court.^*^ Although the administrator may have allowed a claim the court may require and hear other proof thereon.^^ § 275. Pleadings on transfer of claim. — The account or claim filed against an estate stands as the plaintiff's complaint if the claim is contested by the personal representative of the dece- dent. Such claim as filed is a pleading and subject to the same rules of construction as other pleadings. In view of the fact that such controversies are to be tried as other civil actions, such pleadings should substantially correspond with the rules upon that subject which may prevail in regard to the system of plead- ing that may be in force at the time.*** The statute does not re- quire a regular complaint under the ordinar}^ rules of pleading, but merely a succinct statement of the claim, which will be suffi- cient when it apprises the defendant of the nature of the claim, of the amount demanded, and shows enough to bar another action for the same demand.** *■' McConahey's Estate v. Foster, 21 with a formal complaint. Hathaway Ind. App. 416, 52 X. E. 619. v. Roll, 81 Ind. 567; Price v. Jones, ^ Lindley v. Darnall, 24 Ind. App. 105 Ind. 543, 5 N. E. 683, 55 Am. Rep. 399, 56 X. E. 861. 230; Wolfe v. Wilsey, 2 Ind. App. '' Lane v. Bowes, 32 Ind. App. 330, 549, 28 X. E. 1004 : Garrigus v. Home 67 X. E. 1002. &c. .Missionary Soc, 3 Ind. App. 91, ^Johnson v. Keot, 9 Ind. 252; Gif- 28 X. E. 1009, 50 Am. St. 262. Prom- ford V. Black, 22 Ind. 444. In an ac- issory notes executed by the decedent, tion against a decedent's estate, all whether due or not, may be filed as defenses except set-off may be proved claims against his estate. Maddox v. without plea, and the defendant has Maddox, 97 Ind. 537. the benefit of them, though he plead *" Hannum v. Curtis, 13 Ind. 206; them insufficiently. Knippenberg v. Ginn v. Collins, 43 Ind. 271 ; Dodds Morris, 80 Ind. 540. A note executed v. Dodds, 57 Ind. 293 ; Post v. Ped- by the decedent may be filed against rick, 52 Ind. 490; Bryson v. Kelley, an estate without accompanying it 53 Ind. 486; Ramsey v. Fouts, 67 Ind. 432 INDIANA PROBATE LAW. § 275 And the court, in one case, says : "It has also been held, and correctly so, we think, that such succinct statement should contain all such facts as were necessaiy to show prima facie that the de- cedent's estate was lawfully indebted to the claimant, or it would be held bad on demurrer thereto, for want of sufficient facts. "^'^ If a claim, when filed, shows the cause of action to be in a third person, a demurrer should be sustained to such claim."^ In all matters pertaining to the ordinary settlement of an estate, the administrator is the proper representative of the cred- itors in the prosecution and defense of actions affecting their in- terests in the estate, and is, as to them, the trustee of an express trust. "- While the statute permits matters of defense to be gi\en in evidence without plea in trials of claims against the estate of a decedent, yet, if the administrator or executor desires to make any affirmative defense, or seeks affirmative relief in such case, he should file an affirmative pleading."^ 78; Wright v. Jordan, 71 Ind. 1; Hathaway v. Roll, 81 Ind. 567; Davis V. Huston, 84 Ind. 272; Hileman v. Hileman, 85 Ind. 1 ; Stapp v. Messeke, 94 Ind. 423; Strieker v. Barnes, 122 Ind. 348, 23 N. E. 263; Sherwood v. Thomasson, 124 Ind. 541, 24 N. E. 334; Lockwood v. Robbins, 125 Ind. 398, 25 N. E. 455 ; Miller v. Eldridge, 126 Ind. 461, 27 N. E. 132; Scholz v. Schneck, 174 Ind. 186, 91 N. E. 730. '» Windell v. Hudson, 102 Ind. 521, 2 N. E. 303; Huston v. First Nat. Bank, 85 Ind. 21; Moore v. Stephens, 97 Ind. 271. When a claim is filed against an estate it is not necessary to issue a summons for the adminis- trator, nor to formally make him a party, nor to indorse his name on the claim as a defendant. Even though such were necessary, a full appear- ance by the administrator is a waiver of them. Taggart v. Tevanny, 1 Ind. App. 339, 27 N. E. 511. "^ Pence v. Aughe, 101 Ind. 317; Wilson V. Galey, 103 Ind. 257, 2 N. E. 736; Walker v. Heller, 104 Ind. 327, 3 N. E. 114. On trial of a claim against a decedent's estate on a prom- issory note, no special plea is neces- sary to raise the issue that decedent was a surety; Burns' R. S. 1908, § 2842, not requiring an administra- tor to plead anything by way of an- swer except a set-off or counter- claim. Dick V. Dumbauld, 10 Ind. App. 508, 38 N. E. 78. A statement of a claim against an estate alleging that a certain amount "is now justly due and owing to affiant, after mak- ing all proper deductions," is suffi- cient after verdict. Brown v. Sulli- van, 3 Ind. App. 211, 29 N. E. 453. "- Blankenbaker v. Bank, 85 Ind. 459 ; Vogel v. Vogler, 78 Ind. 353. °' Hunt V. Osborn, 40 Ind. App. 646, 82 N. E. 933. 276 CLAIMS AGAINST ESTATES. 433 An executor or administrator should make all proper and just defenses against claims, but it is not required of them that they should attempt the defeat of claims which they know to be just. As in civil actions, any statement of a claim against a dece- dent's estate, whether filed in the form of a complaint or not, may be tested by demurrer. And the same principle applies to all pleadings in such case. It is not necessary for the executor or administrator to plead any special defense except set-ofT and counter-claim, but if he does the sufficiency of such special pleas may be tested by demurrer.^* § 276. Pleading special defenses. — From the statute as it now is, it will be seen that, except as to set-off or counter-claim, special pleadings in the trial of claims is not required, nor are they prohibited. In such a case the parties may, if they choose, plead specially; and if they elect to and do plead specially, they will be bound by their special pleadings and the rulings of the court thereon, to the same extent as if their special pleadings were required by law.^' The practice of filing special pleadings in such cases was allowed in the courts of common pleas of this state, and was, with the jurisdiction of such courts, transferred to the circuit courts, and may now be considered as the established law of the state.^' In a judicial construction of this statute, as it now stands, it has been held that the statute regulates and controls the manner and mode of the trial of claims against the decedents' estates, and not merely the time when the claim shall stand for trial ; and that ""McCulloch V. Smith, 24 Ind. App. ''Alexander v. Alexander, 48 Ind. 536, 57 N. E. 143, 79 Am. St. 281; 559; Griffin v. Hodshire, 119 Ind. 235, Sheeks v. Pillion, 3 Ind. App. 262, 29 21 N. E. 741 ; Pence v. Young, 22 N. E. 786; Simons v. Beaver, 15 Ind. Ind. App. 427, 53 N. E. 1060; Bowen App. 510, 43 N. E. 478; McBride v. v. O'Hair, 29 Ind. App. 466, 64 N. E. Ulmer, 30 Ind. App. 154, 65 N. E. 672; Alerding v. Allison, 31 Ind. App. 610; Trees v. Millikan, 43 Ind. App. 397, 68 N. E. 185; Indiana Trust Co. 256, 85 N. E. 123. v. Byram, 36 Ind. App. 6, 72 N. E. "' Niblack V. Goodman, 67 Ind. 174 ; 670. 73 N. E. 1094. Castetter v. State, ex rel, 112 Ind. 445. 14 X. E. 388. 28— Pro. L.wv. 434 INDIANA PROBATE LAW. § 276 in such cases special defenses shall be pleaded, the same as in other civil cases pending.^^ However, in one case the court, in speaking of the effect of this statute, says that it is to authorize "an executor or admin- istrator to prove any defense to the claim, except a set-oft' or counter-claim, without special plea. It contemplates, however, that an executor or administrator may plead any special defense, as in other cases, and that a defense so pleaded may be tested by demurrer as in other cases.""^ If claims placed upon the issue docket are to stand for trial as other civil actions pending in court, and if "the trial of such claim shall be conducted as in other civil cases," and if these statutes regulate and control the manner and mode of the trial of claims, and not merely the time when a claim shall stand for trial, there would seem to be no good reason, either in law or principle, why special defenses should not be required in such cases as in actions under the civil code. It is safe practice, and the better practice, to file in such actions such special pleas as are required by the code to be filed in civil actions. In trials of claims against estates prior to February 4, 1881, it has been repeatedly held by the Supreme Court that under the evidence in the case the statute of limitations might be enforced without specially pleading it.^** But between that time and the time when the revision of 1881 went into effect, September 19, "'Jennings v. McFadden, 80 Ind. penberg v. Morris, 80 Ind. 540; Per- 531. rill V. Nichols, 89 Ind. 444. °* Castetter v. State, 112 Ind. 445, Every claim against an estate must 14 N. E. 388. All defenses, except be brought within seven and one-half set-ofF and counterclaims, may be years after it accrues, unless the proven without being pleaded. When claimant is under some disability; special defenses are pleaded they may hence, to a claim upon an account be tested by demurrer. Griffin v. against an intestate's estate, a plea, Hodshire, 119 Ind. 235, 21 N. E. 741. that the cause of action did not ac- It is not necessary to plead the stat- crue within six years before bringing ute of limitations in order to obtain the action, is bad. Knippenberg v. the benefit thereof. Zeller v. Griffith, Morris, 80 Ind. 540; Emerick v. 89 Ind. 80. Chesrown, 90 Ind. 47; Epperson v. "'Niblack v. Goodman. 67 Ind. 174; Hostetter, 95 Ind. 583. Parker v. Siple, 76 Ind. 345 ; Knip- § 2/6 CLAIMS AGAINST ESTATES. 435 1 881, while the act of February 4 above mentioned was the only law upon the subject, it was decided that under this law, to make the statute of limitations available as a defense in such actions, it was necessary' to plead it specially, as in other cases/ An account accruing in the lifetime of a decedent falls within the six-year statute of limitations, and if the statute begins to run before the death of the debtor, its running is not, in the absence of some statuton,' provision, suspended by his death, or by the failure to appoint an administrator for his estate.^ In pleading any statute of limitations in such actions it is neces- san- to consider and construe with such statute § 300, Burns' R. S. 1908, which provides that "if any person, entitled to bring, or liable to, any action, shall die before the expiration of the time limited for the action, the cause shall sundve to or against his personal representatives, and may be brought at any time after the expiration of the time limited, within eighteen months after the death of such person." These two statutes must be construed together, and the latter may enlarge the time prescribed by the former, in which an action may be brought against a decedent's estate, if not barred at the time of the decedent's death. If the decedent dies less than eighteen months before the expiration of the time limited for the bringing of the action the time is ex- tended. How long, depends upon the time when the decedent dies; and under this section, while the ordinary period of limita- tion may possibly be enlarged, it can never be diminished or ab- breviated in any case.^ A part payment made by one who is indebted to the estate of a decedent to a person who is not at the time, but is afterwards, appointed administrator of such decedent's estate, is not sufficient to take such debt out of the statute of limitations. The payment ^ Candy v. Coppock, 85 Ind. 594. ^ Hildebrand v. Kinney, 172 Ind. The defense of the statute of limita- 447, 87 X. E. 832; Wood on Limita- tions is available to an administrator tions, § 6. or executor without being specially ' Hiatt v. Hough, 11 Ind. 161; Har- pleaded. Jennings v. ^McFadden, 80 ris v. Rice, 66 Ind. 267; Knippenberg Ind. 531; Candy v. Coppock, 85 Ind. v. Morris, 80 Ind. 540; Epperson v. 594 ; Zeller v. Griffith, 89 Ind. 80 ; Hostetter, 95 Ind. 583. Epperson v. Hostetter, 95 Ind. 583. 436 INDIANA PROBATE LAW. § 2/6 must be made to the creditor, or to some one lawfully acting for him.* The funeral and burial expenses, like taxes, and the expenses of administering the estate, are not debts of the decedent in such a sense as will make the statute of limitations applicable to them.^ The statute of limitations does not begin to run against a claim for work perfomied under an agreement that the employer will provide payment therefor in his will, until after the death of the employer or until the employe ceases work under the agreement." A statement of a claim is not bad, or subject to a demurrer, for failing to state the date when the claim accrued. If barred by the statute of limitations, this is a matter of defense.'^ The Supreme Court have said that it is doubtful whether the executor or administrator can, by his promise, take a debt of his decedent out of the statute of limitations, and whether he is not bound to plead such statute in all cases where it can be made avail- able.^ Ordinarily payment is a defense which, to be available, must be specially pleaded, but the rule is different in claims against the estate of a decedent. A general plea of payment to a claim against an estate is good without stating the time when such payment was made.® And the payment of a less sum than the whole amount due cannot constitute a good accord and satisfaction, nor is it a good plea of payment as to the whole sum alleged to be due. No question is better settled than that a receipt may be explained or contradicted by parol evidence ; and a material error or mistake in computing the amount due on any instrument of writing may, as between the parties thereto, be corrected, and that although * Kisler V. Sanders, 40 Ind. 78 ; Mc- ' Riser v. Snoddy, 7 Ind. 442, 65 Bride v. Ulmer, 30 Ind. App. 154, 65 Am. Dec. 740. N. E. 610. 'Epperson v. Hostetter, 95 Ind. ^ Hildebrand v. Kinney, 172 Ind. 583. If it is desired to have the time 447, 87 N. E. 832. more definitely fixed the practice is ° Purviance v. Purviance, 14 Ind. by motion to make more specific not App. 269, 42 N. E. 364. by demurrer. ' Purviance v. Purviance, 14 Ind. ' App. 269, 42 N. E. 364. § 277 CLAIMS AGAINST ESTATES. 437 a full settlement may have been made and a receipt in full pay- ment of the claim given." The defense of either full or of partial payment may be set up without special plea." §277. Set-off and counter-claim. — Set-off and counter- claim are the only two defenses the executor or administrator must plead specially on trials of claims against the estate of his decedent. In the interest of the speedy and least expensive settle- ment of decedents' estates, the law contemplates a simple and direct trial in cases of claims against estates and a final disposi- tion of all matters in controversy between the administrator and the claimant. It will be noticed that the affidavit the statute re- quires a creditor to attach to his claim before filing must exclude the existence of any set-offs or deductions. If all set-offs and counter-claims are honestly and correctly disclosed by the claim as filed, the trial is a simple matter. But if they are not disclosed by the claim itself, then it is incumbent on the executor or ad- ministrator to set them up. The reason why set-off and counter-claim are not provable without plea is that neither, strictly speaking, is a defense. Each is in the nature of a cross-action, asserting a demand against the claimant, and seeking judgment against him as upon an original action. Set-off is a cross-demand allowed only in actions for money demands upon contract, and must consist of matter aris- ing out of debt, duty, or contract, held by the defendant at the time the suit was commenced, and matured at or before the time it is offered," while counter-claim is any matter arising out of or connected with the cause of action which might be the subject of an action in favor of the defendant, or which would tend to re- duce the plaintiff's claim or demand for damages. ^^ Counter-claim differs from set-off in this, that counter-claim must arise out of and be connected with the subject-matter upon which the claim or complaint is based, while a set-off is based ^» Markel v. Spitler, 28 Ind. 488. '= Burns' R. S. 1908, § 353. " Simons V. Beaver, 15 Ind. App. '' Burns' R. S. 1908, § 355. 510, 43 N. E. 478. 438 INDIANA PROBATE LAW. § 277 upon some cross-demand against the plaintiff which is entirely independent of and disconnected with the subject-matter of the complaint, except that it must be of the same general class and limited to money demands arising out of contracts. A set-off may be pleaded as a defense, although the claim upon which it is based is barred by the statute of limitations, the rule being that a set-off is not barred so long as the claim against which it is pleaded is not barred.^'* The dismissal of the claim after a set-off or counter-claim has been pleaded thereto by the executor or administrator does not prevent such executor or administrator from proceeding with the trial and obtaining a judgment against the claimant upon such set-off or counter-claim." The principle of mutuality requires that the debts should not only be due to and from the same person, but in the same ca- pacity ; therefore a debt due from the decedent in his lifetime can- not be set off against a claim in the hands of his administrator which originated in favor of the estate of the intestate after his death.^« Where a cross-demand against an estate is a proper set-off to a claim in favor of the estate, the fact that it was not due at the time of the decedent's death does not deprive the holder of such demand of the benefit of the set-off if his demand be due at the time it is pleaded as a set-off. But the contingent liability of one who is surety for the decedent at the time of his death is not such a cross-demand, although as such surety he was afterwards com- pelled to pay the debt of the decedent.^^ The right to a set-off to one sued upon a demand due an estate is not affected by the solvency or insolvency of the estate. ^^ " Burns' R. S. 1908, § Z7Z ; Rennick Whitcomb v. Stringer, 160 Ind. 82, V. Chandler, 59 Ind. 354; Warring v. 66 N. E. 443. Hill, 89 Ind. 497; Peden v. Gavins, " Dayhufif v. Dayhuflf, 27 Ind. 158; 134 Ind. 494, 34 N. E. 7, 39 Am. St. Harte v. Houchin, 50 Ind. 327; Ferris 276. V. Mullan, 56 Ind. 164; Welborn v. " Burns R. S. 1908, § 2843 ; Judd v. Coon, 57 Ind. 270. Gray, 156 Ind. 278, 59 N. E. 849; " Convery v. Langdon, 66 Ind. 311. " Convery v. Langdon, 66 Ind. 311. § 2/8 CLAIMS AGAINST ESTATES. 439 A set-off may be asserted as a defense, though a separate action could not be maintained upon it; so where a debtor has had no opportunity to assert a claim in his favor as a set-ofif against a debt due from him to an estate, pending the administration of such estate, he may do so after final settlement, in a suit brought against him on his debt, by a distributee.^^ The setting off debts owing by heirs or legatees against their legacies or distributive shares is a doctrine well established in this state, but is perhaps more properly discussed in connection with the subject of distribution. The doctrine is rather one of re- tainer than set-off, the law investing the executor or administra- tor with the right to retain and apply a distributee's share of the funds in his hands to the payment and satisfaction of a debt owing to the estate from such distributee. The right is founded on the principle that the administrator or executor has an equi- table lien on the share of the distributee or legatee until the latter has discharged the obligation which he owes to the estate.-^ Where an executor or administrator is himself indebted to the estate, the court, in making an allowance to such officer out of the funds of the estate, for his services, may order that the sum so allowed shall not be credited to him on his account with the estate, but that it should be applied by such executor or admin- istrator upon his indebtedness to the estate. ^^ § 278. Claim based on note — Attorney fees. — In an action upon a claim against an estate founded upon a note or written contract executed by the decedent in his lifetime, the execution of such note or contract must be proved ; and the failure to ob- ject to the introduction of such instrimient in evidence does not waive this proof. The execution of the instrument is a fact in issue, and as necessary to be proved as the introduction of the note or contract in evidence. The plea of non est factum by the " Huffman v. Wyrick, 5 Ind. App. v. State, 43 Ind. App. 387, 84 N. E. 183, 31 N. E. 823. 161. =" Holmes v. McPheeters, 149 Ind. =^ Moore v. State, 43 Ind. App. 387, 587, 49 N. E. 452; Weaver v. Gray, 84 N. E. 161. Z7 Ind. App. 35, 76 N. E. 795 ; Moore 440 INDIANA PROBATE LAW. § 278 executor or administrator in such case need not be sworn to. It is reasonable to require the maker of a note or other written in- strument to deny the instrument signed with his signature, if at all, under oath, for he is presumed to know what instmments he has signed and whether the signature is his or not ; but not so as to others not purporting to be the makers of such written instru- ments.-- The law puts in a general denial for an administrator or ex- ecutor in actions on claims, and under this the execution of a note is as much an issue as if put in issue by a special plea and the burden of establishing its due execution rests upon the claimant. ^^ It has been held that a note does not lose its negotiability by being filed and allowed as a claim against a decedent's estate.-' The question as to the allowance of attorney's fees on a note "Riser v. Snoddy, 7 Ind. 442, 65 Am. Dec. 740; Mahon v. Sawyer, 18 Ind. 72>; Barnett v. Cabinet Makers' Union, 28 Ind. 254; Cawoods v. Lee, Z2 Ind. 44; Wells v. Wells, 71 Ind. 509. In an action against decedent's estate upon a written instrument, its execution by the decedent must be proved, though not denied under oath. Ruddell v. Tyner, 87 Ind. 529. Under the act of February 14, 1881, concerning the allowance of claims against decedents' estates (Acts 1881, p. 20), where a claim was filed against a decedent's estate founded upon the decedent's note, payable to a third person, by whom it was as- signed by indorsement to the claim- ant, and the execution of the assign- ment was not put in issue by a plead- ing under oath, the assignment was admissible in evidence without proof first made of its execution. It is otherwise under §§ 370 and 2842, Burns' R. S. 1908. Jennings v. Mc- Fadden, 80 Ind. 531; Digan v. Man- del, 167 Ind. 586, 79 N. E. 899, 119 Am. St. 515; Bowen v. O'Hair, 29 Ind. App. 466, 64 N. E. 672; Indiana Trust Co. V. Byram, 36 Ind. App. 6, 72 N. E. 670, 73 N. E. 1094. "^Kennedy v. Graham, 9 Ind. App. 624, 35 N. E. 925, Z7 N. E. 25. Where J. S., one of the payees of the note, was introduced as a witness by the defendant, the credit of the witness could not be impeached by proof of bad character. The defend- ant was under no obligation to intro- duce her as a witness, and had no reason to expect favorable testimony from her. Diffenderfer v. Scott, 5 Ind. App. 243, 2,2 N. E. B7. In an ac- tion upon a promissory note executed by a decedent, payable out of his es- tate after his death, it is error to admit evidence of declarations of the decedent in reference to the note made after its execution, and in ab- sence of the paj^ee. In such case evi- dence of a valuable consideration is necessary to support the note. Har- court V. Harcourt, 89 Ind. 104. '* Weathered v. Smith, 9 Tex. 622, 60 Am. Dec. 186. § 2/8 CLAIMS AGAINST ESTATES. 441 filed against an estate, where the claim is allowed by the adminis- trator without dispute or contest, has never been directly decided in this state. In one case the face of the claim and interest was al- lowed, but no attorney's fees. On the transfer of the claim to the issue docket to try the question of attorney's fees, such fees were allowed by the court, but its decision does not rest upon the ab- stract right to attorney's fees in all cases, but rather on the par- ticular facts of that case. The court uses this lang-uage : ''We can see no reason why the claimant should not recover attorney's fees when the acts or default of the administrator renders it necessary for him to employ an attorney and incurs a liability for attorney's fees. A different question would be presented in case of an un- disputed and unsecured promissory note where neither the de- cedent nor the administrator is at fault, and where all that is re- quired of the claimant is to file the same in the office of the clerk, as required by the statute.""" The stipulation in a note to pay attorney fees is in the nature of a contract of indemnity and is enforceable only when the maker commits a breach of the provisions of the note. A note containing such a stipulation filed before maturity as a claim against the estate of the deceased maker and allowed by his ad- ministrator does not carry any right to attorney fees, and the ad- ministrator was sustained for refusing to allow such fees.-° The Supreme Court has frequently decided that where a claim, based upon a note containing a promise to pay attorney fees, is filed against an estate and not allowed, but is contested by the ad- ministrator, the claimant, if he recovers, is entitled to recover at- torney fees. The court say: "We can see no reason why the claimant should not recover attorney fees when the acts or default ''Jewett V. Hurrle 121 Ind. 404, 23 the sale, but the administrator, in- N. E. 262. In this case the note was stead of paying him, retained the secured by chattel mortgage, and the money, and thus compelled the cred- mortgaged property had been sold by itor to come into court and obtain an order of the court, free from the order on him to pay it. lien, to pay the debt represented by ''St. Joseph County Sav. Bank v. the note, and the creditor was enti- Randall, Z7 Ind. App. 402, 76 N. E. tied to his pay from the proceeds of 1012. 442 INDIANA PROBATE LAW. § 278 of the administrator renders it necessary for him to employ an attorney, and incurs a Hability for attorneys' fees.""^ As a rule, any obligation that can be enforced against a per- son while living may be enforced against such person's estate, and a stipulation in a contract to pay attorney's fees is within this rule.-** Such stipulations, however, are intended simply as an indem- nity to indemnify the payee for such reasonable sum only as he may be compelled to pay, or become liable for, to an attorney at law for services rendered by him to induce or compel the payers to fulfill their contract."'' -' Jewctt V. Hurrlc, 121 Ind. 404, 23 N. E. 262; Hanna v. Fisher, 95 Ind. 383; Bond v. Orndorf, 11 Ind. 583. Where a promissory note, stipulating for the payment of attorney's fees, is tiled against a decedent's estate, the claimant is entitled to introduce evi- dence of the value of attorney's fees without any formal demand in such demand for judgment. Hanna v. Fisher, 95 Ind. 383. The agreement to pay attorney's fees is a part of the contract, and the appellee is entitled to recover according to the terms. Price V. Jones, 105 Ind. 543, 5 N. E. 683, 55 Am. Rep. 230; Glenn v. Por- ter, 72 Ind. 525. Attorney's fees pro- vided for in a contract are not costs, nor in the nature of costs. They form a part of the cause of action, and are recovered because they are provided for in the contract sued on. Groves v. Wiles, 1 Ind. App. 174, 27 N. E. 309. The stipulation for the payment of attorney's fees becomes operative, and can be enforced only when expenses have been actually and necessarily incurred in the emploj^- ment of an attorney for the enforce- ment of collection, consequent upon the failure of the payer to keep hb engagement, and then only to the extent actually paid or to be paid, or reasonably chargeable. Goss v. Bow- en, 104 Ind. 207, 2 N. E. 704 ; Harvey V. Baldwin, 124 Ind. 59, 24 N. E. 347, 26 N. E. 222; Starnes v. Schofield, 5 Ind. App. 4, 31 N. E. 480; Moore v. Staser, 6 Ind. App. 364, 32 N. E. 563, 'iZ N. E. 665 ; Boyd v. Smith, 15 Ind. App. 324, 43 N. E. 1056. ^Bond V. Orndorf, 11 Ind. 583. Where a surety, in paying a promis- sory note executed by himself and his deceased principal, is not required to pay the attorney's fees for which the note provides, he is not entitled to recover such attorney's fees from his principal's estate, but he is en- titled to recover the amount paid by him, with interest, and no more, his cause of action being not upon the note, but upon an implied promise of indemnity. Gieseke v. Johnson, 115 Ind. 308, 17 N. E. 573. An attorney employed by residuary legatees, per- forming services beneficial to the estate, cannot maintain a claim against the estate therefor. It is otherwise where the employment is by the administrator. Scott v. Dailey, 89 Ind. 477. ^Kennedy v. Richardson, 70 Ind. 524; Goss v. Bowen, 104 Ind. 207, 2 § 279 CLAIMS AGAINST ESTATES. 443 Attorney's fees may be recovered on a claim against the estate of a decedent based upon a promise to pay contained in a mort- gage signed by the decedent and his wife to secure a note signed by the wife alone.^*' § 279. Widow and heirs not necessary parties. — A creditor of a decedent's estate, in the prosecution of an ordinary claim against the executor or administrator of such estate, cannot join the widow and heirs of the decedent as parties defendant. They are not necessary or proper parties to a full prosecution of such claim. The executor or administrator represents their interest in the estate, and is bound to make all needed defense to such claim. It would be very inconvenient to bring them all in their own proper persons, before the court, so they are allowed to ap- pear by their representatives; and thus an adequate protection is provided for their interests, and the spirit of the general rule is adopted, although the letter of it, for the sake of convenience, is evaded. ^^ In all matters pertaining to the settlement of the estate the executor or administrator stands as the representative of those to whom the personal property of the decedent devolves, whether creditors, heirs, or legatees, and in the absence of fraud or collu- sion whatever he does in respect to such property is conclusive X. E. 704; Moore v. Staser, 6 Ind. he must pay, in addition to the prin- App. 364, 32 N. E. 563, 33 N. E. 665. cipal and interest, such reasonable at- In this last case the court says : torney's fees as shall be sufficiently "Where a party executing a note adequate to compensate him for the containing an unconditional argree- services rendered in order to dis- ment to pay attorney's fees, whether charge the obligation." See also the amount is a stated per cent, or Starnes v. Schofield, 5 Ind. App. 4, undetermined, has failed to meet his 31 N. E. 480; Harvey v. Baldwin, obligation when due, and the payee, 124 Ind. 59, 24 N. E. 347, 26 N. E. in good faith, and because he deems 222. it necessary so to do, in order to '"Foster v. Honan, 22 Ind. App. enforce collection, places the note in 252, 53 N. E. 667. the hands of an attorney at law for "Nelson v. Hart, 8 Ind. 293; Stan- collection, who renders professional ford v. Stanford, 42 Ind. 485; Tick- services in and about the collection nor v. Harris, 14 N. H. 272, 40 Am. thereof, either by suit or otherwise, Dec. 186. 444 INDIANA PROBATE LAW. § 280 upon them.''" He is entitled to all the personal property of the decedent and neither the heirs nor legatees can prevent him from asserting such right. The allowance of a claim against him binds them as well as the creditors of the estate ;^^ and if money due to the decedent has been paid to the heirs who would be entitled to it on distribution the executor or administrator may recover it from them/* for until distribution he is absolutely entitled to the possession of all the personal property and any interference there- with, by any person, which has the efTect of depriving him of the possession is a conversion, and he is entitled to recover such prop- erty whether it is necessary to satisfy debts or not.'^ The next of kin have no right to be made parties to a suit against the estate, though alleging collusion between the adminis- trator and the creditor.^" !^ 280. The trial of claims. — The power to try claims against the estates of deceased persons includes all actions upon which a money judgment can be rendered, whether growing out of contract or tort, or whether legal or equitable in their nature.^^ In the trial of claims the statute provides that it shall be con- ducted as in ordinaiy civil cases: and if the finding be for the claimant in damages, the court shall render judgment against the executor or administrator for the amount thereof and six per cent, thereon, and for costs, if allowed by the provisions of this act, to be paid out of the assets of the estate to be administered ; if the claims sued on be secured by a lien upon property of the deceased, the date and extent shall be ascertained and fixed by the finding and judgment ; if the finding be in favor of the executor "Morris v. Murphey, 95 Ga. 307,22 (Pa.) 134; McCustian v. Ramey, 33 S. E. 635, 51 Am. St. 81; Harter v. Ark. 141. Songer, 138 Ind. 161, 37 N. E. 595; ^ Horton v. Jack, 115 Cal. 29, 46 Glover v. Patten, 165 U. S. 394, 41 Pac. 920. L. ed. 760, 17 Sup. Ct. 411. '' Byrd v. Byrd, 117 N. Car. 523, 23 "Byrd V. Byrd, 117 N. Car. 523, S. E. 324. 23 S. E. 324; Harwood v. Marye, 8 "Hoffman v. Hoflfman, 126 Mo. Cal. 580. 486, 29 S. W. 603 ; Moore v. Rogers, "Eisenbise v. Eisenbise, 4 Watts 19 111. 347; Dehart v. Dehart, IS Ind. 167; Brook v. Chappell, 34 Wis. 405. 28o CLAIMS AGAINST ESTATES. 445 or administrator upon a set-off or counter-claim, judgment shall be rendered thereon as in ordinar>' cases ; if a set-off or counter- claim be pleaded, and the claim be aftenvard dismissed, the execu- tor or administrator may, nevertheless, proceed to trial and judg- ment on the set-off or counter-claim.^^ If any claimant fail to attend and prosecute his claim at the time the same shall be set down for trial, the court shall dismiss the claim; and any subsequent prosecution of the claim shall be at the costs of the claimant, unless good cause for such failure to prosecute be shown. ^^ The allowance of a claim by the court is a judgment with the same conclusive effect as other judgments of courts of general jurisdiction, with this exception, that such allowance is not con- clusive as to the real estate of the decedent. This, for the reason that the heir, who is the owner of the real estate, is not a neces- sary party on the trial of the claim. The action being against the administrator, the allowance is conclusive as to the personal estate. As a judgment it is impervious to collateral attack.*'' The fact that the proof upon the trial of a claim does not estab- lish it upon the precise theorv^ stated in the claim will not prevent a recovery thereon.*^ '^ Burns' R. S. 1908, § 2843; able, convincing and uncontradicted, jMackey v. Ballou. 112 Ind. 198, 13 the court has no right to disregard X. E. 715. Claims against an estate it in arriving at a conclusion. Cun- may be allowed without inquiring ningham v. Packard, 6 Ind. App. 36, whether they belong to a preferred 32 X. E. 334. A separate trial, to de- class, or whether there are assets termine the right to have a claim to pay them. Fickle v. Snepp, 97 preferred, cannot be demanded; the Ind. 289, 49 Am. Rep. 449n; Good- right to a preference must be tried bub v. Hornung, 127 Ind. 181, 26 X. and determined in connection with E. 770. the trial of the question as to the =• Burns' R. S. 1908, § 2841. allowance of the claim. Goodbub v. Where a claim against a decedent's Hornung, 127 Ind. 181, 26 X. E. 770. estate is fairly established, it is the ** Munday v. Leeper, 120 Mo. 417, duty of the court to allow such 25 S. W. 381 ; Barber v. Bowen, 47 claim; but it is the duty of the court Minn. 118, 49 X. W. 684; Tate v. to carefully scrutinize the evidence Xorton, 94 U. S. 746, 24 L. ed. 222; supporting such claim, for the pur- Stults v. Forst, 135 Ind. 297, 34 X. E. pose of preventing fraud. Where 1125. the testimony in support of a claim " Taber v. Zahner, — Ind. App. — , against a decedent's estate is reason- 93 X. E. 1035. 446 INDIANA PROBATE LAW. ^ 281 Where a claim lias been regularly disposed of upon the issue docket of the proper court, it will be presumed, where the record is silent on the matter, that all the necessary steps were taken.'' Claims for funeral and burial expenses, and the expenses of ad- ministration, are to be tried before the probate judge without a jury, while on the trial of ordinary claims against an estate a jury may be allowed." ^ 281. Liability of executors and administrators on their promises. — If supported by a sufficient consideration and in other respects valid, the promise of an executor or administrator to pay the debt of his decedent may be enforced against him per- sonally. He cannot, by his own act, create a debt against the es- tate; having no power to bind the estate, a promise so made by him binds only himself. If. in the absence of assets of the estate, an executor or administrator give his naked promise to pav a debt of his decedent, such promise is void, being without considera- tion.'* And if an executor or admini.strator promises in writing, that in consideration of having assets of the estate he will pay a par- ticular debt of the decedent, he may be sued on such promise in his individual capacity, and the judgment against him will be de bonis propriis.*' Such a promise is made upon a consideration which accrued subsequent to the decedent's death. and was to do a thing which his estate was not bound to do : and a promise so made by an executor or administrator will bind him personally, but not the estate, unless facts are stated showing- a rieht to charge the estate, or that the consideration for the promise arose prior to the death of the decedent." *' Rodman v. Rodman, 54 Ind. 444. Snead v. Coleman, 7 Gratt. (Va.) "Hildebrand v. Kinney, 172 Ind. 300, 56 .\m. Dec. 112. 447, 87 N. E. 832. '^Carter v. Thomas, 3 Ind. 213; ** Christian v. Morris, 50 Ala. 585, Mills v. Kuykendall, 2 Blackf. (Ind.) Claghorn's Estate, 181 Pa. St. 600, 47. 37 Atl. 918, 59 Am. St. 680; Davis ^^ Cornthwaite v. First Nat. Bank, V. French, 20 Me. 21, Z7 Am. Dec. S7 Ind. 268; Holderbaugh v. Turpin, 36; Wilton v. Eaton, 127 Mass. 174; 75 Ind. 84, 39 Am. Rep. 124; Moody V. Shaw, 85 Ind. 88. § 282 CLAIMS AGAINST ESTATES. 447 If a third person be induced to purchase the assignment of a note due from an hitestate's estate, upon the representations of the executor or administrator of the estate, that such note should be paid, in the absence of sufficient assets of the estate, such ex- ecutor or administrator will be held personally liable; and such promise is not within the statute of frauds."" It is the settled law of this state that a note given by one ot several administrators admitting a sum of money to be due from an intestate's estate, is not admissible in evidence in a suit agams the co-administrator unless accompanied by proof ot an original indebtedness upon which such note was founded; and that when such proof is made the note becomes only prima facie evidence liable to be disputed on any ground which would have been valid as against such original indebtedness.*' For the enforcement of promises of this class some benefi must have accrued, or some right must have been J''^^'^ "".^'^^ would not have accrx,ed or been yielded m the absence of te promise, otlterwise there is no consideration to support the ^'in'the'absence of negligence or nnsconduct the e-ecutor or administrator is not personally liable for the d^bts o -s d ce dent If he has used the assets properly, and they fail to satisfy al, the claims in the order of^their priority, the creditors cannot have any recourse upon him.°° In any matter for which the estate would be hable, although the executor or administrator promise, it must not be understood that his personal liability on such promise operates to exo--^« or discharge the estate, for as between the ofhcer and the estate he miy recover from the estate whatever he has to pay by reason of his promise.^^ § 282 Form and effect of judgment rendered on claim.— Where the action is against an administrator or executor upon a «Hackleman v. Miller, 4 Blackf. /^Bank v. ^l^'^^^J^^''^,,^''' /T A ^ 199 Schouler Exrs. & Admrs.. S t^- (Ind.) 322. , T ^ 971 " Peter v Beverlv, 10 Pet. (U. S.) -Weston V. Murnan, 4 Ind 271. Peter ^- ^^ -^ B^f,,d, 9 ^•Vogel V. O'Toole, 2 Ind. -\pp. 532, 9 L. ed. 5-^, ri 196, 28 X. E. 209. ^I°- 869- 44^ INDIANA PROBATE LAW. § 282 demand due from the estate of his decedent, the judgment should be made payable out of the assets of the estate and not against him personally."^ A judgment against an administrator or executor as such, to he paid out of the assets of the estate of the deceased, is not sub- stantially, but merely nominally, a judgment against him. It is a judgment against the estate which he administers, and is never to be paid unless the estate is able to pay it. The executor or ad- ministrator is not. by such judgment, rendered absolutely liable for its payment, nor is such a judgment within the statute author- izing replevin bail.''^ Tf the instalment upon which the claim is based jirovides that the debt shall be paid in installments, and some installments are not due when judgment is rendered, the court need not render a judgment for the gross amount but may make it payable in in- stallments as the same become due.''* No judgment can be rendered directed against any ])articular assets of the estate except wlien the claimant has some sjiecific " Fla.Lij? V. Winans, 2 Ind. 123; is a mere allowance of the claim to Campbell v. Lindley, 17 Ind. 280; lie paid in due course of administra- Steinmetz v. State, ex rcl., 47 Ind. tion. Maddo.x v. Maddox, 97 Ind. 465. .An allowance of a claim against 537. a decedent's estate is not a lien on " Egbert v. State, 4 Ind. 399. The the estate, nor can its payment be record of the allowance of a claim enforced by execution; and where against the estate of a decedent is the decedent had, in his lifetime, as- prima facie evidence of the validity signed a policy of insurance on his and amount of the claim. Cole v. life to his creditor, as collateral se- Lafontaine, 84 Ind. 446; Jackson v. curity for the payment of his debt. Weaver, 98 Ind. 307; Smith v. Gor- the creditor does not waive his right ham, 119 Ind. 436, 21 N. E. 1096. to the proceeds of such policy by Where judgment was rendered procuring an allowance of his debt against the estate when it should as a claim against the decedent's have been against the administrator, estate in the proper court, nor by but no objection was taken to the his assignment without recourse of form, and no motion made to cor- such policy to the decedent's adminis- rcct it, the error was not noticed on trator solely for the purpose of col- appeal. Maddox v. Maddox, 97 Ind. lection. Hight v. Taylor, 97 Ind. 392. 537. Promissory notes, whether due or '" Wolfe v. Wilsey, 2 Ind. App. 549, not, may be filed as claims against 28 N. E. 1004. an estate. The judgment upon them § 282 CLAIMS AGAINST ESTATES. 449 lien upon certain property. Such lien is not necessarily divested by a judgment on the claim." Though not a judgment in the strict sense of the term, the al- lowance or rejection of a claim by the court operates as an ad- judication between the claimant and the administrator or execu- tor and is binding upon the estate as well as upon the claimant.'^ A valid claim must be shown to be due from a decedent to au- thorize a judgment against his estate. And if, upon the trial of a claim against an estate, it appears that such claim is the per- sonal debt of the administrator, no judgment can be rendered ni the matter, as such administrator is not personally a party to such suit." Where an account tiled against a decedent's estate has been prosecuted to a final judgment on its merits, and such judgment remains in force, the account cannot be used as a set-off in a suit by the administrator against the claimant on a note executed by such claimant to the decedent in his lifetime.'** An administrator or executor has no authority to confess judg- ment on a claim against the estate he represents. The statute which provides that the defendant may, at any time before trial, offer in writing to allow judgment to go against, etc., is not ap- plicable to the liquidation of claims against a decedent's estate. After such claim has been placed upon the issue docket for trial, "Johnson V. Meier, 62 Ind. 98. adjudication, and is sufficient to bar -La Porte v. Organ, 5 Ind. App. another action, it having none of the 369 12 \ E 342; Bentley v. Brown, characteristics of a nonsuit or dis- 123' Ind. 552. 24 N. E. 507; Stults v. missal without Prejudice. Stult^ v. Forst. 135 Ind. 297. 34 N. E. 1125. Forst. 135 Ind. 297. 34 N. E. 1125^ " Horrall v. Scudder, 27 Ind. 499. If an instrument provides that the Where a claim is filed against a de- debt shall be paid in installments and cedent's estate, an issue formed, the some of the installments are not yet case submitted to the court for trial, due, the judgment upon proof of the and the court takes the case under claim, need not be rendered for a advisement, and, after several days, gross sum, but the adnn>nistra or may being fully advised in the premises, be permitted to pay the debt m m- dismlsses it, or disallows it, charging stallments as they become due^ the costs to claimant, such judgment Wolfe v. W.lsey, 2 Ind. App. 549, 28 having never been set aside nor ap- N. E 1004. pealed from, the case has been de- "Nave v. Wilson, Zl Ind. 294. cided upon its merits, and is a final 29— Pro. L.\w. 450 INDIANA PROBATE LAW. § 282 the executor or administrator cannot allow judgnient to go on such claim without the consent of the court.'" § 283. No execution on judgment of allowance. — No exe- cution or final process shall be issued on any allowance or judg- ment rendered upon a claim against a decedent's estate for the collection thereof out of the assets of the estate; but all such claims shall be paid by the executor or administrator, in full or pro rata, in due course of administration."" The admission or allowance of a claim against the estate of a decedent by the executor or administrator does not have the force and effect of a judgment in any particular;"^ while the allowance of such claim by the court after it has been placed upon the issue docket for trial has, in many respects, the force of a regular judgment in a civil action ; but such allowance gives the creditor no additional rights against the decedent's estate. The allowance does not become a lien upon the projjerty of the estate, and its payment cannot be enforced by execution."'- Such judgment can only be a mere allowance of the claim to be paid in due course of administration."^ The property of a decedent's estate in the hands of his executor or administrator to be administered is not subject to levy and sale under an ordinary execution issued on a judgment against such executor or administrator. There is but one case under our law at present in which the property of a deceased debtor so held can be sold upon execution, and that is where the judgment upon which the execution issues directs the sale of certain specified property in the hands of the executor or administrator to satisfy the judgment."* In all other cases the spirit and intention of the law of this state for the settlement of decedents' estates are in direct conflict with the idea that any portion of the property of such estates in the hands of the executors or administrators there- of can be subjected to levy and sale on execution issued on a judg- '"Hanna v. Dunham, 10 Ind. App. " Maddox v. Maddox. 97 Ind. 537. 611, 38 N. E. 343. "Burns' R. S. 1908, § 724, 2d '' Burns' R. S. 1908, § 2845. clause ; Joiner v. Sanders, 5 Blackf . "Fiscus V. Robbins, 60 Ind. 100. (Ind.) 378. *= Hight V. Taylor, 97 Ind. 392. § 284 CLAIMS AGAINST ESTATES. 45 ^ ment against such executor or administrator. The pui-pose of the law would be defeated if such property were subject to levy and sale on such execution. Therefore, without express legislative au- thority, the courts have no power to order and direct that a judg- ment against an estate on a debt due from the decedent, except for the sale of specific property, shall be levied on the property of the decedent in the hands of his executor or administrator.®'' § 284. Proceedings after judgment.— New trials may be granted in claim cases as in actions under the code of civil pro- cedure. Such new trials may be granted for causes discovered after the close of the term at which the trial was had on the claim.'* The devisees or heirs of a decedent may maintain an action to set aside the judgment or allowance on a claim against his es- tate, at any time before the final settlement of such estate, for fraud or mistake in the rendition of such judgment ; but to be allowed to do this they must have appeared and made defense to the claim, or in some way have been parties to such judgment." But such persons cannot afterwards, in contesting the adminis- trator's application to sell real estate, question the validity of such allowance.*^* A complaint to review the proceedings and judgment upon a claim against a decedent's estate, is not authorized by the statute regulating the settlement of such estates, and as the provisions of the civil code for the review of judgments in civil actions are not applicable to proceedings and judgments on claims, such judg- ments cannot be so reviewed.'® Either party to the action on the trial of a claim who feels him- self aggrieved by the judgment of the court has the right to ap- peal therefrom.''*^ « Johnson V. Meier, 62 Ind. 98. "Smith v. Gorham, 119 Ind. 436, •« McConahev v. Foster, 21 Ind. 21 N. E. 1096. , , ^ ^^ App 416 52 N. E. 619. "^ McCtirdy v. Love. 97 Ind. 62. -Bell V Avres, 24 Ind. 92; Cassel ^"Burns' R. S. 1908, § 2977; post, V Case 14 Ind. 393; Lancaster v. Chap. 20; Ray v. Moore, 154 Ind. Gould, 46 Ind. 397. 368, 56 N. E. 841. CHAPTER XII. PAYMENT OF CLAIMS AND EXPENSES. §285. The payment of claims and Ha- §292. The widow's allowance. bilities. 293. Payment of judgments, mort- 286. Order of priority. gages and and other liens. 287. The expenses of administra- 294. Payment by order. tion. 2'^5. Penalty for delaying payment. 288. Debts due to the United 296. Interest on claims. States. 297. Payment of money into court. 289. Payment of funeral expenses. 297a. Payment to heirs, etc., before 290. Expenses of last sickness. final settlement. 291. The payment of taxes. § 285. The payment of claims and liabilities. — The i)rinci- pal purpose of an administration is the payment of the debts of a decedent and the distribution of the surplus of his estate. In fact, the chief purpose is the payment of the debts, for as has been shown, if there are no debts an estate may be settled by the heirs without an administration.^ After a claim has been properly allowed by the executor or administrator, or by order of court, it becomes the duty of the executor or administrator, in the due course of administration, to apply the assets of the estate in his hands to the payment of each claim in its order. The order in which all claims against a decedent's estate shall be paid is fixed by statute. It prescribes, in plain terms, what claims have priority of payment over the general debts of the estate ; and judgment of a court that a particular claim shall be a preferred claim will not give to such a claim a preference, con- trary to the provisions of the statute. The rights of priority and the order of payment are fixed and determined by the letter of ^Ante, § 24. § 285 PAYMENT OF CLAIMS AND EXPENSES, 453 the statute and not by the judgment of the court." And where the law fixes the order for the payment of claims, it should be pursued; othenvise the loss, if any, to a preferred claimant must fall upon the executor or administrator who pays a claim out of its order. An executor or administrator should not receive credit in his final settlement for any payment he makes on the general debts of the estate until all the preferred claims are paid.^ Where a settlement had been made with the creditor by the administrator of a deceased debtor, and the claim allowed in full under a mutual mistake that the estate was solvent, when in fact it was not, and the claim thus allowed is not a preferred one, such mistake could be relieved against.* As a rule an overpayment to a creditor, made by the adminis- trator or executor, may be recovered, it being inferred that he only intended to make such payment as the estate could afford, and not to subject himself to personal liability on account of a deficiency of assets. This is, however, contrary to the common- law rule.^ But it is probably essential to recovery, that such pay- ment has been made under the impression that the estate was solvent." So where an executor or administrator, acting under the hon- est belief that the estate is solvent, pays a creditor in excess of his pro rata share, he may recover back the excess paid in an action for money had and received for the use of the estate. In such case it must appear that the money was paid by the executor or administrator under a mistake of fact and not under a mistake of law.^ "Jenkins v. Jenkins, 63 Ind. 120; the}^ can be paid. Newcomer v. Wal- Goodbub V. Hornung, 127 Ind. 181, lace, 30 Ind. 216. 26 N. E. 770. It is the duty of the * East v. Ferguson, 59 Ind. 169. administrator to pay claims when- 'Walker v. Hill, 17 Mass. 380; ever he has money available for that Hatcher v. Royster, 14 Lea (Tenn.) purpose. Pence v. Makepeace, 75 222; Beatty v. Dufief, 11 La. Ann. 74. Ind. 480. * Rogers v. Weaver, 5 Ohio 536; ' Cunningham v. Cunningham, 94 Walker v. Hill, 17 Mass. 380. Ind. 557. Liens on real estate may ' Tarplee v. Capp, 25 Ind. App. 56, be paid, and should be paid, as soon 56 N. E. 270; Smith v. Smith, 76 as assets are obtained out of which Ind. 236; Stokes v. Goodykoontz, 126 454 INDIANA PROBATE LAW. § 285 The rule is that claims should be filed against an estate as the statute requires, and if an executor or administrator pays a claim which has not been filed and allowed he does so at his peril.** An heir, devisee or legatee has a right to pay debts against the ancestor or testator for the purpose of protecting his interest in the property of the decedent, and equity will keep the debt alive for his benefit, and subrogate him to all the rights of the creditor whose debt he has paid." So where a widow advances money to the administrator of her husband's estate to be used by him in paying just and valid claims against such estate, she is subro- gated to tiie rights of the creditors whose claims were paid with her money. The court says: "In allowing her to recover the money so paid no one is injured. She is simply subrogated to the rights of the creditors whose just and valid claims were paid bv her. She is only paid what otherwise would have been paid to such creditors. She gets neither more nor less than they were entitled to receive. "^"^ Such payments are not regarded as voluntary payments, and even where a stranger pays a debt of the decedent at the request of the executor or administrator of such decedent's estate, he will be subrogated to all the rights of the creditor whose debt he paid." In one case it was held that the purchaser of real estate from an heir, who pays a debt of the decedent in order to protect his title, is entitled, as against the estate of such decedent, to l)e sub- rogated to all the rights of the creditor whose debt he paid.^- And in another case it was held that one who had purchased real estate at an administrator's sale which sale after\vard pro\ed to be void, who by direction of the administrator paid the purchase Ind. 535. 26 N. E. 391: Wolf v. "Neptune v. Tyler, 15 Ind. App. Beaird, 123 111. 585, 15 X. E. 161, 5 132. 41 X. E. 965. Am. St. 565. " Owen Creek Presby. Church v. 'Ditton V. Hart, — Ind. — , 95 N. Taggart, 44 Ind. App. 393, 89 N. E. E. 119. 406. •Owen Creek Presby. Church v. '-"Chaplin v. Sullivan, 128 Ind. 50, Taggart, 44 Ind. App. 393, 89 X. E. 27 X. E. 425. 406. § 286 PAYMENT OF CLAIMS AND EXPENSES. 455 price on the debts of the estate, was entitled to be subrogated to the rights of the creditors/' § 286. Order of priority.— The statute provides the fol- lowing order in which claims shall be paid. Unless otherwise provided in this act, the debts and liabilities of a decedent shall, if his estate be solvent, be paid in the following order of classes : First. The expenses of administration. Second. The expenses of the funeral of the deceased. Third. The expenses of his last sickness. Fourth. Taxes accrued upon the real and personal estate of the deceased at his death, and taxes assessed upon the personal estate during the course of the administration. Fifth Debts secured by liens upon the personal and real estate of the decedent created or suffered by him in his lifetime, and continuing in force: Provided, That the real estate of the de- cedent shall have been sold subject to any lien, and the holder thereof shall have accepted the bond of the purchaser, as provided in this act. the debt secured by such lien shall be omitted m the distribution. Sixth \ sum not exceeding fifty dollars, for wages due any employe for work and labor perfomied for the decedent withm two months prior to his death. Seventh. General debts. Eighth. Legacies.'* _ The executor or administrator has no discretion, but must toi- low the order prescribed by this statute, even though otherwise directed bv the court. A failure to observe this order of payment will make the executor or administrator liable to any creditor who suffers loss by reason thereof.'' "Duncan v. Gainey. 108 Ind. 579, "If a creditor who has ^ Hen o" ^^, E 470 P'-^P^^ty does not enforce the same, "Burns' R S 1908, § 2901. The but files his claim agamst the estate statute provides "the order in which his claim will then be only a general claims shall be paid, and the court debt. Rogers v. State, 6 Ind. 31. cimTot tange such order. Jenkins When there are liens upon the mter- enkins 63 Ind. 120; Goodbub v. est of the widow m the lands of the Horntg 127 Ind. 181, 26 N. E. 770. decedent created to secure h,s debts. 456 INDIANA PROBATE LAW. § 287 The question of priority, and as to whether a claim should be paid as preferred, can be raised and tried at the time of the con- sideration of the final report of the executor or administrator, either by petition or by exceptions to the report. ^*' Where an estate is clearly solvent, and there are ample assets to pay all the debts, the administrator or executor is not guiltv of a breach of trust simply because he does not pay the debts in the exact order designated by the statute. Any deviation, however, from this order, on his part, is at his peril, for if injun- should result to the estate l)y reason of it he would l)e i:>ersonally liable.'^ The classification in this statute is an arbitrary one, but it is in- tended to apply to all estates alike, lx)th solvent and insolvent, and unless specific liens absorb all the property the statute must be followed.^® Mr. Woemer says : "The executor or adminis- trator is bound, at his peril, to observe the order of priority in the payment of the debts of his testator or intestate, for if he pay those of lower rank first, having notice of the existence of debts of a higher degree, he must, on a deficiency of assets, answer to those of the higher degree out of his own estate."^® § 287. The expenses of administration. — By the English rule,-" as well as the rule in some of the states.-^ the funeral ex- penses take precedence over all other debts and liabilities, but in this state the expenses of administration are the first of the debts of an estate which an executor or administrator is authorized to the funds in the hands of the admin- tiie proceeds of such sale as soon as istrator should be applied on such the same are collected. Jewett v. liens before the payment of general Hurrle, 121 Ind. 404, 23 N. E. 262. debts. Perry v. Barton, 25 Ind. 274 ; " Masterson v. Cauble, 15 Ind. Hunsucker v. Smith, 49 Ind. 114; App. 515. 41 N. E. 477, 44 N. E. 377. Morgan v. Sackett, 57 Ind. 580; "^ Hildebrand v. Kinney, 172 Ind. Sparrow v. Kelso, 92 Ind. 514; 447, 87 X. E. 832; Snyder v. Thieme Bowen v. Lingle, 119 Ind. 560, 20 N. &c. Brew. Co., 173 Ind. 659, 90 N. E. E. 534. 314. " Goodbub V. Hornung, 127 Ind. " Woerner Am. Law Admin., § 364. 181, 26 X. E. 770. If a personal =nViIliams Exrs., 988; 3 Co. Inst, estate is ordered sold free of liens, 202. persons holding such liens are en- "' Woerner Am. Law Admin., § 365. titled to receive their claims out of § 287 PAYMENT OF CLAIMS AND EXPENSES. 457 pav. Their payment takes precedence over all other classes of in- debtedness. And in the payment of such expenses, it is of im- portance to an executor or administrator to know just what costs and expenses belong in this first class of claims, so as to take precedence of all other debts. The Supreme Court in construing this provision of the statute says: "Where costs are incurred by an administrator in the proper defense of claims filed against the estate, or in prosecuting claims in favor of the estate against others, such costs pertain to expenses of administration, and their payment has preference over other claims. But costs incurred by persons in prosecuting claims against the estate should not be re- garded as expenses of administration. Where such costs are in- curred as a sequence of the recovery of allowances of claims against the estate, they stand on the same footing as such claims ; in fact, are part thereof, and are to be paid in full unless the as- sets of the estate are sufficient to pay in full all claims of the class to which they belong.""^ Expenses under this head will include those paid for probating a will as well as the costs of an appeal from such probate ; also the costs of a good faith effort made by the executor to uphold the will in a contest proceeding, as well as a reimbursement to hmi for his expenses in preserving the estate during the litigation." Expenses of administration is a broader term than "probate charges," and under that phrase all sucli expenditures may be = Costs incurred by an executor or 425, 20 X. E. 294. If a claim against administrator in prosecuting claims, a decedent's estate be not duly ven- or in defending suits against the es- fied until after it has been filed, the tate, are to be paid as expenses of ad- claimant shall be bound for all costs ministration. Costs made by claim- in the prosecution of the claim. ants where claims are allowed Hanna v. Fisher, 95 Ind. 383. against the estate, are not expenses ===> Andrews v. Andrews, 7 Ohio St. of administration, but are paid in the 143; Hazard v. Engs, 14 R. I. 5; order in which such claims are paid. Meeker v. Meeker, 74 Iowa 352, 37 Taylor v. Wright, 93 Ind. 121. When X. W. 773, 7 Am. St. 489; Lassiter property is sold to discharge a lien v. Travis, 98 Tenn. 330, 39 S. W. thereon, no portion of the proceeds 226; Mathis v. Pitman, 32 Xeb. 191 can be applied on the expenses of ad- 49 X. W. 182; Gilbert v. Bartlett, 9 ministration, funeral expenses or of Bush (Ky.) 49; Phillips v. Phillips, last sickness, until the lien is fully 81 Ky. 328. satisfied. Rvker v. Vawter, 117 Ind. 45^ INDIANA PROBATE LAW. § 287 allowed which have been legitimately made on behalf of the es- tate." Expenses of administration are a debt of the estate, and not of the decedent, and the rule is well settled that the debts of the estate must be paid before the debts of the decedent." All the property of a debtor which can be subjected to the pay- ment of his debts is a fortiori subject to the payment of the ex- penses of administration. His real estate may be sold for such purpose, and the fact that it has been fraudulently conveyed does not exempt it."*^ Attorney's fees, for ser\-ices rendered an exe(;utor or adminis- trator, may become expenses of administration, veiy much de- pending upon the character of the services and the contract under which they were rendered.-' The right of an executor or administrator to an allowance for attorney fees, expended by him either in establishing or resisting a will, depends in a great measure upon whether the litigation was beneficial to the estate or not. or whether it was in the interest of those who would ultimately be entitled to the assets." In all bona fide litigation where the interests of the estate are involved the executor or administrator is entitled to credit for court costs occasioned by such litigation and regardless, too, of the result of it. But if litigation is caused by his own negligence or bad faith, or where he has without good cause resisted a just demand against the estate, he, and not the estate, will be held liable for the costs.-" "Gurnee v. Maloney, 38 Cal. 85, 99 51 Ind. 159; Long v. Rodman, 58 Ind. Am. Dec. 352; Nathan v. Lehman, 39 58; Scott v. Dailey, 89 Ind. 477; Ark. 256. Roll v. Mason, 9 Ind. App. 651, Zl == United States v. Eggleston, 4 X. E. 298; Richey v. Cleet. 46 Ind. Saw. (U. S.) 199; Linton, Succession App. 326. of. 31 La. Ann. 130. ^ Sheetz's Appeal, 100 Pa. St. 197; ""Dunning v. Driver, 25 Ind. 269; Henry v. Superior Court, 93 Cal. Falley v. Gribling, 128 Ind. 110, 26 569, 29 Pac. 230; Lassiter v. Travis, N. E. 794; Bassett v. :\rcKenna, 52 98 Tenn. 330, 39 S. W. 226. Conn. 437. =" Bendall v. Bendall, 24 Ala. 295, "Lauve. Succession of. 18 La. Ann. 60 Am. Dec. 469; Glen v. Fisher, 6 721; Thompson's Estate, In re, 41 Johns. Ch. CN. Y.) ZZ, 10 Am. Dec. Barb. (X. Y.) 237; Xave v. Salmon, 310. § 288 PAYMENT OF CLAIMS AND EXPENSES. 459 But an executor or administrator cannot charge the estate for sen'ices rendered it by himself as attomey.^^ Costs made in suits brought or defended by an executor or administrator, in good faith, in matters pertaining to the estate are proper charges against the estate.^ ^ "Where in prosecuting a claim against an estate, one recovers such claim with his costs, the payment of his costs has no pref- erence, but follows the same order of the claim in the prosecution of which they are recovered ; and such costs will, according to the assets of the estate, be entitled to a full or pro rata payment with the claims of the same class."^" An estate is chargeable with the reasonable expenses of an executor in resisting the contest of a will.^^ A wrong action knowingly brought by an administrator should be dismissed at his costs. And he should be charged, also, with the expense of an appeal wrongfully prosecuted by himself.^* Allowances to executors and administrators for ser^-ices are largely within the discretion of the court, and in making them the court should take into consideration the nature and amount of the estate, the difficulties attending its settlement, the peculiar qualifications of the officer, together with other facts and circum- stances necessar}' to come to a just conclusion.^" § 288. Debts due to the United States. — One class of claims not provided for in the above statute, which, in their pay- ment, take precedence of all other debts of the decedent, is claims due the United States. This preference exists by authority of a law of congress and is therefore valid and binding in all the states ^ Miles V. DeWoIf, 8 Ind. App. 153, Ind. 399; Miles v. DeWolf, 8 Ind. 34 X. E. 114: Taylor v. Wright, 93 App. 153, 34 X. E. 114. Ind. 121; Pollard v. Barkley, 117 ^* McClelland v. Bristow, 9 Ind. Ind. 40. 17 X. E. 294. App. 543, 35 X. E. 197; Raugh v. "Mackey v. Ballou, 112 Ind. 198, Weis. 138 Ind. 42, Zl X. E. 331. 13 X. E. 715: Andrews v. Andrews, ^Pollard v. Barkley, 117 Ind. 40, 7 Ohio St. 143. 17 X. E. 294; Watkins v. Romine, ^Tavlor v. Wright, 93 Ind. 121. 106 Ind. 378. 7 X. E. 193; Ex parte " Roil V. Mason, 9 Ind. App. 651, Hodge. 6 Ind. App. 487, ZZ N. E. 980 ; Zl X. E. 298: Bratney v. Curn,-. ZZ Ross v. Conwell. 7 Ind. App. 375, 34 X. E. 752. 460 INDIANA PROBATE LAW. § 288 whether their statutes, like ours, are silent on tlie subject, or not. This act of congress places all debts due the general government before all other debts whatever, and therefore supersedes all state laws upon that subject.^" This priority, however, does not oper- ate as a lien upon the debtor's property, nor in derogation of any lien created by the debtor before his death." The estate of any deceased person who may have in his life- time, in any manner, become indebted to the United States, will be held liable for the payment of such debt: and if the estate of such deceased debtor in the liands of his executor or administra- tor shall be insufficient to pay all his debts in full, the debt due the United States must first be fully satisfied ; it will take precedence of all other classes of indebtedness ; nor can the local laws of a state bind the United States or their rights in such case.^" It is provided that ''whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied." And "even- executor, ad- ministrator or assignee, or other person who pays any debt due by the person or estate from whom or for which he acts, before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and his estate for the debt§ so due to the United States, or for so much thereof as may remain due and unpaid."^" As the priority of the United States only extends to the net proceeds of the property of the deceased, it does not take pre- cedence of taxes, funeral charges, and the necessary expenses of administration. These are not "debts due from the deceased," but charges imposed on the estate by the law of the land, and must be discharged before paying any claim due the United States. Expenses of the last illness of the decedent do not, '"United States v. Duncan. 4 Mc- S.) 182, 9 L. ed. 94; Brent v. Bank, Lean (U. S.) 607. 10 Pet. (U. S.) 596, 9 L. ed. 547. =•' Brent v. Bank, 10 Pet. (U. S.) ^U. S. Stat. 1878, §§ 3466, 3467, 596, 9 L. ed. 547. 5101. ''* Field V. United States, 9 Pet. (U. § 289 PAYMENT OF CLAIMS AND EXPENSES. 46 1 however, take precedence of a claim due the United States. Such claim does not yield in priority to the claim of any creditor.*'' In order, however, to bind an executor or administrator, he must have notice of the existence of the debt due the United States ; othei-wise no devastavit will be created by his paying creditors of the estate in the ordinai-y course of administration.*^ § 289. Payment of funeral expenses. — It is a duty to bury a deceased person in a manner suitable to the estate he leaves behind him, and it makes little difference by whom this duty is performed ; the law implies a promise to reimburse him for the reasonable expenses incurred and paid."*- This duty of bur}-ing the dead is of such high and sacred im- portance from a sentimental point of view, as well as from the point of public policy, that the reasonable expense incurred in its perfonnance is, almost without exception, given priority of pay- ment over other debts and liabilities. In this state the payment of such expenses is placed second in the order of priority. The rule is, that funeral epenses to be entitled to priority, must be reasonable, and comprise the expenses properly incurred for the burial and the compensation to the undertaker. The authorities differ as to what constitutes a reasonable expenditure for the funeral.'*^ In some states the funeral expenses are limited by statute.** ** United States v. Eggleston, 4 " Shaeffer v. Shaeffer, 54 Md. 679, Saw. (U. S.) 199; United States v. 39 Am. Rep. 406; Crapo v. Arm- Duncan, 12 111. 523. strong, 61 Iowa 697, 17 N. W. 41; "United States v. Fisher, 2 Hewett v. Bronson, 5 Daly (N. Y.) Cranch (U. S.) 358, 2 L. ed. 304; 1; Valentine v. Valentine, 4 Redf. Aikin v. Dunlap, 16 Johns. (N. Y.) (N. Y.) 265; Freeman v. Coit, 27 11; Harrison v. Sterry, 5 Cranch Hun (N. Y.) 447; Samuel v. (U. S.) 289, 3 L. ed. 104. Thomas, 51 Wis. 549, 8 N. W. 361; "Hapgood V. Houghton, 10 Pick. Spire v. Lovell, 17 III. App. 559; Mc- (Mass.) 154; Dampier v. St. Paul Clellan v. Filson, 44 Ohio St. 184, 5 Trust Co., 46 Minn. 526, 49 N. W. N. E. 861, 58 Am. Rep. 814. 286; Fogg v. Holbrook, 88 Me. 169, "In re Butler's Estate, 3 McAr- IZ Atl. 792, Zl L. R. A. 660n; thur (U. S.) 535; Sue. Hearing, 28 France's Estate, 75 Pa. St. 220; Hil- La. Ann. 149. debrand v. Kinney, 172 Ind. 447, 87 N. E. 832. 4^2 INDIANA PROBATE LAW. § 289 And in some cases such expense will include a reasonable sum for a burial lot.*" As against legatees, heirs and next of kin, such expense may be incurred as will bury the deceased according to the station he occupied in life; but as against creditors nothing sliould be allowed beyond what is absolutely necessary." The principle to be deduced from the cases is, that the funeral expenses must be in accordance with the condition and station in life of the decedent ; and must bear a reasonable relation to the size and value of his estate. Funeral and burial expenses are not in the nature of claims against an estate. As the court says in one case: "They are not debts of the decedent, hence not accounts against him or his estate, within the meaning of the statute of limitations. They can arise from no request or obligation of the decedent, express or implied, unless it might be under the provisions of a will. They are liabilities or charges against his estate, raised up and imposed by law, as distinguished from obligations arising by some act or promise of the decedent. They stand in the same category as expenses of administration."*' Where the entire proceeds of a decedent's property are re- quired to pay and discharge a specific lien placed thereon by him in his lifetime, and the estate is insolvent, such lien will absorb the entire fund to the exclusion even of the expenses of admin- istration, funeral expenses and the expenses of last illness.*' All reasonable expenses incurred for the funeral will be al- lowed, but no allowance will be made to an executor or admin- istrator for his time and trouble in attending the funeral of the "Chalker v. Chalker, 5 Redf. (N. *' Hildebrand v. Kinney, 172 Ind. Y.) 480; Metz's Appeal, 11 S. & R. 447, 87 N. E. 832; Snyder v. Thieme (Pa.) 204; Jennison v. Hapgood, 10 &c. Brew. Co., 173 Ind. 659. 90 N. E. Pick. (Mass.) n. 314. "Flintham's Appeal, 11 S. & R. ** Ryker v. Vawter, 117 Ind. 425, CPa.) 16; M'Glinsey's Appeal, 14 S. 20 N. E. 294; Hildebrand v. Kinney, & R. (Pa.) 64; Toller Exrs. 245; 172 Ind. 447, 87 N. E. 832. 2 Williams Exrs. 872; Hancock v. Podmore, 1 B. & A. 260. § 289 PAYMENT OF CLAIMS AXD EXPENSES. 463 decedent, nor for payments made to friends and relatives for such services.*^ The estate is not hable for the expense of unnecessarily remov- ing the body of a decedent from a suitable place of interment and burying it elsewhere. ^*^ But the reasonable expenses for taking up, removing, and re-interring the body will be allowed when it is made to appear that the place of the original burial was improper or unfit for that purpose. Where the decedent dies away from home the expense of communicating the news of his death to his family, the expense of transporting the body to his home, and the added cost of a person to accompany the body, are legitimate funeral charges and should be allowed. '^^ The cost of a coroner's inquest, and the expense of a post- mortem examination are neither properly part of the funeral expenses. ^- As to the amount to be allowed for funeral expenses much will depend upon the condition of the estate, while the rule is that such an amount may be expended as is necessary to bur)- the decedent in the style usually adopted for persons of like rank and condition in society, yet this rule is much qualified in the interest of creditors where the estate is insolvent. Little if any difficulty will arise where the estate is clearly solvent, but where it is not tlie executor or administrator should refuse to allow extravagant claims for funeral and burial expenses. ^^ ** Lund V. Lund, 41 N. H. 355. able in insolvent estates, even greater ""Watkins v. Romine, 106 Ind. 378, latitude is necessary where there are 7 X. E. 193. See Allen v. Allen, 3 sufficient assets to pay the debts. Dem. (N. Y.) 524. The circumstances determining what "Hasler v. Hasler, 1 Bradf. (N. is reasonable in such cases are nu- Y.) 248; Sullivan v. Horner, 41 N. merous, and the degree of importance J. Eq. 299, 7 Atl. 411. attached to each is incapable of ex- "Houts V. McCluney, 102 Mo. 13, act measurement, impressing them- 14 S. W. 766; Smith v. McLaughlin, selves more or less strongly on dif- 11 111. 596. ferent minds. Public opinion and " "Impossible as it is to lay down a general expectation, fashion, the feel- precise rule to be followed in re- ings of friends and neighbors, the spect of the funeral expenses allow- age, standing, property, and habits of 464 INDIANA PROBATE LAW. § 289 While by statute in this state, an executor or administrator is bound to pay the expenses of the funeral and last illness of his decedent, whether such funeral was ordered by the executor or administrator, or by some third person, yet such statute is silent as to the expense of a monument or tombstone erected at the erave of such decedent. It has been decided that the estate of a decedent cannot be held liable for money expended for a monu- ment placed at the grave of such decedent, on a contract made with a party other than the executor or administrator of the de- cedent.=^* But in a proper case an executor or administrator will be allowed to expend, or authorize the expenditure of a reasonable and moderate sum for a tombstone for the grave of tlie dece- dent.'' This would perhaps l)e the rule in ever>- case, as between the personal representatives and the heirs, devisees, or distributees life of the decedent, as well as the erected in memory of the decedent, standing and rank in society of the surviviiig family, must all be consid- ered. But large expenditures for burials, disproportioned to the assets of an estate should not be encour- aged. If greater economy were in- sisted on, in small as well as in great estates, many a widow and heir struggling under the privations of bitter poverty would have reason to the court in which such appeal is pending will not interfere by injunc- tion. Lewis v. Fillion, 4 Ind. App. 105, 29 N. E. 443. In Vogel v. OToole, 2 Ind. .^pp. 196, 28 N. E. 209, the plaintiffs sold and delivered a monument to A in his lifetime. .\fter .A's death, his administrator wrote a letter to the plaintiff con- taining this statement : "I will file be thankful for being prevented from the bill for you and get as much as wasting a substantial part of their the estate will pay, and I will settle means upon the fruitless pomp and the rest." Signed as an individual, ceremony of an extravagantly costly not as administrator. There being funeral." Woerner Am. Law Admin., § 360. "Lerch v. Emmett, 44 Ind. 33L See also, Sweeney v. Muldoon, 139 Mass. 304, 31 N. E. 720, 52 Am. Rep. 708. When an appeal is taken by an administrator from an allowance against his decedent's estate for a monument which is about to be no consideration, the administrator was held not liable for the balance of such claim. '''Burnett v. Noble, 5 Redf. (N. Y.) 69; Campbell v. Purdy. 5 Redf. (N. Y.) 434; Owens v. Bloomer, 14 Hun (N. Y.) 296; Jaqua v. Gray, 46 Ind. App. 24, 91 N. E. 745. 289 PAYMENT OF CLAIMS AND EXPENSES. 46: of the decedent, and also as against creditors of the estate in cases where the estate was clearly solvent. Where the estate is clearly solvent the executor or administra- tor is authorized to allow the reasonable and necessary cost of a tombstone or monument placed at the grave of his decedent, as a part of his funeral expenses,^** and the heirs or third persons have the right to erect a suitable monument to the decedent and have the cost thereof charged against his estate.^' The funeral expenses of a minor child are not an absolute charge against the estate of such minor. Under the law a father is, in general, liable for the decent funeral expenses of his de- ceased minor child. When, however, the parent has no property of his own with which to support a minor child, resort may be had to the property of the child for such purpose, but such con- '^ Pease v. Christman, 158 Ind. 642, 64 N. E. 90; Jaqua v. Gray, 46 Ind. App. 24, 91 N. E. 745. " Hildebrand v. Kinney, 172 Ind. 447, 87 X. E. 832. In Pease v. Christman, 158 Ind. 642, 646, 64 N. E. 90. the court says : "In the appeal in Webb's Estate, 165 Pa. St. 330, 30 Atl. 827, 44 Am. St. 666, the court said : 'In any event the act of burial includes all the usual incidents of decent burial, of which one, at least, is the erection of a suitable tombstone.' It certainly cannot be asserted that the mere fact that a tombstone or monument to mark the last resting place of the deceased was erected at the grave after the burial will result in making it any less an item incident to such burial. Of course, where the estate of the de- ceased is insolvent, a stricter rule prevails in the allowance of funeral expenses than is enforced where the estate is solvent. The rights of cred- itors of insolvent estates are of more regard than those of the next of kin of the deceased, and the rule in such cases is to allow no more to defray funeral expenses than is necessary and reasonable under all of the cir- cumstances. In the determination of that question, however, the rank or condition in life of the deceased is a factor to be taken into considera- tion by the court. The rule that, in the eye of the law, one must be just before he is generous applies with equal force to his estate after his demise, or, in other words, as as- serted by some of the authorities, 'Dead debtors must not feast to make their living creditors fast.' In the absence of any statutory restriction to the contrary, the amount to be al- lowed against the estate of a dece- dent for the cost of a tombstone or monument or other funeral expenses is, as a general rule, a matter to be left under all of the circumstances in each particular case, to the sound discretion of the probate court, the abuse of which discretion will be subject to review on appeal to a higher court." 30— Pro. Law. 466 INDIANA PROBATE LAW. § 29O dition of the parent must first be made to appear, as the habihty of the child's estate for such charges is contingent on the inabihty of the parent to pay.^* But an infant husband's contract for the burial expenses of his deceased wife or children is binding upon him and conse- quently binding upon his estate. Such contract is given validity because it is for the burial of those who are so closely joined with him by reason of the marriage relation that it is to be regarded as a contract for his own personal benefit."^" § 290. Expenses of last sickness. — The expenses of the last sickness are obligations accruing in the lifetime of the decedent, and unlike funeral exi>enses, they will be barred by the six-year statute of limitations, and the statute will begin to run from the death of the decedent.'"' The statute makes funeral expenses and the expenses of the last sickness preferred debts to the lien of judgments, mortgages, etc., in so far at least as the personal assets are concerned. As to the expenses of the last illness of the deceased no rule of limitation can be laid down. Much will depend ujwn the character and duration of such sickness, and the degree of atten- tion necessar}'. It will include physician's charges, for nursing '* Rowe V. Raper, 23 Ind. App. 27, to be commenced within six years. 54 X. E. 770. 11 Am. St. 411 ; Maitlen Whether the e.xpense was incurred V. Maitlen. 44 Ind. App. 559, 89 N. E. at the request of the decedent, or 966; Schouler Dom. Rel., § 242a; solely upon request of appellant, or Field Parent & Child. § 54; Bair v. under his promise to pay it. if there Robinson, 108 Pa. St. 247 ; Sullivan v. was any liabilit\' upon the part of de- Homer, 41 N. J. Eq. 299, 7 Atl. 411; cedent to pay. either express or im- Kinney v. Heuring. 44 Ind. App. 590, plied, the obligation and debt arose 87 N. E. 1053. 88 N. E. 865. before his death, and the w^eight of "' Schouler Dom. Rel., § 199 ; Chap- authority is, that the statute begins pie V. Cooper, 13 M. & W. 252. to run before the death of a decedent, "^".■\s to the claim of appellant for in the absence of satutorj- provision, money paid for the service of a it is not suspended by death, or by physician and for an invalid chair, the failure of appointment of an ad- it was clearly an account within our ministrator." Hildebrand v. Kinney, statute requiring actions on accounts 172 Ind. 447, 450, 87 X. E. 832. § 291 PAYMENT OF CLAIMS AND EXPENSES. 467 and attendance, medicine, etc., all of which will vary with the nature of the disease, and the situation of the patient." All such claims for last illness are of equal degree, and if the estate is not sufficient to pay them all it should be divided pro rata among them.''" The expenses of a wife's last sickness and funeral are primar- ily a charge upon the husband and not against the estate of the wife.®^ Expenses of the last illness are in some of the states classed with funeral expenses, but if there be no statutory provision to that effect they cannot be so classed, because they accrue before death and therefore constitute a debt of the decedent, while the funeral taking place after, cannot constitute a debt of the de- ceased, but only a charge against his executor or administrator.®* § 291. The payment of taxes. — Taxes constitute the next class in the order of preference, and it is the duty of the executor or administrator to pay all taxes for which the estate in his hands is justly liable ; and it is not necessary that such taxes should be presented and filed as are other claims. All taxes upon the per- sonal estate due at the death of the owner, and which accrue during the course of administration, as well as all taxes which have accrued against the real estate of the decedent at the date of his death, are proper charges against his estate and must be paid by his executor or administrator.®' All taxes due at the time of the death of a decedent, whether levied against his personal property, or his real estate, are a charge against his estate to be met and paid, in proper order, by his executor or administrator. Taxes accruing upon his real es- "Percival v. McVoy, Dudley (S. 281, 15 X. E. 631, 4 Am. St. 311; Car.) 2,2,7. Freeman v. Coit, 27 Hun (N. Y.) "Bennett v. Ives, 30 Conn. 329. 447. "Staples' App., 52 Conn. 425; Gal- " Woerner Am. Law Admin., § 361. loway V. McPherson, 67 Mich. 546, ""Coleman v. Coleman, 5 Redf. (N. 35 N. W. 114, 11 Am. St. 596; but Y.) 524; Ring v. Ewing, 47 Ind. see McClellan v. Filson, 44 Ohio St. 246; Henderson v. Whitinger, 56 Ind. 184, 5 N. E. 861, 58 Am. Rep. 814; 131. See Chap. 21. Constantinides v. Walsh, 146 Mass. 468 INDIANA PROBATE LAW. § 292 late after his death must he paid by the heirs, or those who be- come the owners of it. But as the ownership, jxjssession, and control of the personal estate is in the personal representative of the decedent, and such proi)erty must be returned by such repre- sentative for taxation so lon<( as the estate remains in his hands for settlement; therefore, all taxes accruing against personal property of an estate prior to final settlement are charges to be met and paid out of the funds of the estate.'"' Ami if an administrator, having assets of the estate in his hands, fails to pay the taxes properly assessed against him as such administrator, he will be held personally liable for such taxes."^ For the puri)<)ses of taxation and the payment nf taxes, the title and possession of the executor relate back to the lime of the death of the decedent.*"* While, in the order prescribed by the statute for the payment of the debts and liabilities of a decedent's estate, taxes are fourth, yet they are not such claims as the law requires shall be filed for payment as other debts ; they are groui^ed witli funeral expenses and exj^enses of administration as charges to l)e paid by the ex- ecutor or administrator in due course of administration without any formal presentation."" § 292. The widow's allowance. — There is one preferred claim not provided for by the statute fixing the order of priority for the payment of the debts and liabilities of the estate of a de- ceased husband, which takes precedence of all debts and charges against his estate except expenses of administration, funeral ex- penses, and expenses of last sickness, and that is the claim of his widow to the statutor}- allowance provided for her by § 2786 Bums' R. S. 1908. *=« Wilson V. White, 133 Ind. 614. 33 Y) 223 \ State v. Jones. 39 X. J. L. N. E. 361. 19 L. R. A. 581; People 650. V. Barker, 150 N. Y. 52, 44 N. E. "^^ Sommers v. Boyd, 48 Ohio St. 785 ; Fairfield v. Woodman, 76 Me. 648. 29 N. E. 497. 549. "^Graham v. Russell, 152 Ind. 186. •"Williams v. Holden, 4 Wend. (N. 52 X. E. 806; Hildebrand v. Kinney, 172 Ind. 447. 87 X. E. 832. 293 PAYMENT OF CLAIMS AND EXPENSES. 469 She may take this allowance in personal property at the time of the appraisement, but if she does not claim it then, or claims only part of it, she is entitled to payment of it in money, and if the estate is clearly solvent she must be paid out of the first money received by the executor or administrator. This allowance is given to her whether the husband dies testate or intestate. She can only be barred from asserting her claim to this allowance by some act of her own, such as an election under a will, or an ante- nuptial or post-nuptial agreement, or some positive waiver on her part."' This statutory allowance is not an interest in the estate of the decedent, nor is the widow's right to its payment a claim to be filed against his estate. It is in the nature of a preferred charge imposed by law upon the estate, of which the executor or admin- istrator is bound to take notice and to see paid.'' And if the widow should die before the five hundred dollars allowed her by the statute has been paid to her, its payment may be enforced by her executor or administrator against the estate of her hus- band." The statute makes it the duty of the executor or administrator to pay the widow this claim out of the first money received by him, if the estate is solvent, and if he refuses wrongfully to pay it when he should do so. an action will lie against him for its re- covery and the judgment obtained should include interest from the date of such refusal." Such claim is to be paid as other claims against the estate are paid, out of the proceeds of the personal estate of the decedent if suflicient. and if not. by the sale of real estate.'* ^ 293. Payment of judgments, mortgages and other liens. — Next in priority of payment are such debts as are secured by liens upon the personal or real estate, which attached during the "Ante, §§ 164. 165, 166, 167. 33 Ind. 399; Pierce v. Pierce, 21 Ind. "Claypool V. Jaqua, 135 Ind. 499, App. 184, 51 X. E. 954. 35 X. E. 285 ; Rush v. Kelley, 34 Ind. " Brown v. Bernhamer, 159 Ind. App. 449, 73 X. E. 130. 538. 65 X. E. 580. '- Welch V. Collier, 27 Ind. App. '* Claypool v. Jaqua, 135 Ind. 499, 502. 61 X. E. 757; Bratney v. Curry, 35 X. E. 285. 470 INDIANA PROBATE LAW. § 293 lifetime of the decedent, and which remain in force after his death. Judgments, mortgages and other liens, against either the personal or real estate of a decedent must be paid by his executor or administrator, before paying the general debts of the estate. The filing of the claims secured by such liens, against the estate, entitles the lien-holder to his preference in the class to which his claim properly belongs, and to his full or pro rata share in the distribution of the personal assets of the estate, but such filing of the claim does not release the lien of the judgment, mortgage, etc." Formerly the statute did not give the mortgage creditor a gen- eral lien against the assets of the estate, nor did it give his claim any preference over the general debts of the estate, further than the property to which his lien extended. The mortgage created no lien except upon the property embraced in it, and the lien as to such property continued after the mortgagor's death ; and it has been held that in cases where the mortgagor was not in possession of the proj^erty mortgaged at the time of his death, the mortgagee had his choice, to follow the projierty, or resort to the estate for the payment of his debt ; but in case he sought pay- ment from the estate, his claim would be classed with the general debts." A vendor's lien is often referred to as an equitable mortgage. and it is in some respects analogous to a mortgage, but under a ™ Clarke v. Henshaw, 30 Ind. 144; personal estate are preferred claims Newcomer v. Wallace, 30 Ind. 216; as to such estate, and insolvency of Hunsucker v. Smith, 49 Ind. 114. As the estate does not affect the same, soon as there are funds available for Evans v. Pence, 78 Ind. 439. A lien the purpose the liens on the property upon a judgment should be paid out of the decedent should be paid, and of the proceeds of the judgment, and before payment of the general debts, the court by an order may compel State, ex rel., v. Brown, 80 Ind. 425. such payment. Blankenbaker v. Bank, After mortgaged property is ex- 85 Ind. 459. hausted the balance of the mortgaged '" Rogers v. State, 6 Ind. 31 ; New- debt is only an ordinary claim. Cole kirk v. Burson, 21 Ind. 129; Kirk- v. McMickle, 30 Ind. 94 ; Rodman v. patrick v. Caldwell, 32 Ind. 299 ; Kim- Rodman, 64 Ind. 65 ; La Plante v. mell v. Burns, 84 Ind. 370 ; Rodman Convery, 98 Ind. 499; Kimmell v. v. Rodman, 64 Ind. 65. Burns, 84 Ind. 370. Mortgages on § 293 PAYMENT OF CLAIMS AND EXPENSES. 47 1 former statute it was held not to be a mortgage or entitled to any legal preference as a lien, the statute at that time limiting such claims to "judgments which are liens upon the decedent's real estate, and rnortgages upon real and personal property exist- ing in his lifetime."' ' It seems that from the broader terms of the statute as it now is, such a lien would fall within the class preferred in clause five, and the amount due be collected as if secured by a purchase money mortgage."^ The holder of a lien against a decedent's real estate must file his claim against the estate if he wishes to share in the personal estate, and if he does not file such claim his remedy will be con- fined to the particular land to which his lien attaches.'*' The allowance of a claim against a decedent's estate, based upon notes secured by mortgage upon real estate of the decedent, does not bar a right to foreclose such mortgage after the lapse of a year from the death of the decedent.^** One who has obtained a judgment and had an execution issued thereon in the lifetime of the judgment debtor, is not prevented by the provisions of § 2847, Burns' R. S. 1908, from levying said execution and selling real estate thereunder after the death of the judgment debtor.*'^ If a lien-holder files his claim against the estate of the deceased debtor it is the duty of the executor or administrator to pay such claim in its order out of the personal estate.®- When an administrator sells land of his decedent for the pur- pose of discharging a specific lien against it, the creditor is en- titled to have the money arising from such sale applied to the discharge of his lien to the exclusion of the costs of administra- tion, funeral expenses, and expenses of last sickness.®' It is held that the widow has many rights not possessed by the ''R. S. 1876, p. 534, § 109; Kim- "*" Kohli v. Hall, 141 Ind. 411, 40 N. mell V. Burns, 84 Ind. 370. E. 1060. "Whetstone v. Baker, 140 Ind. " Blumenthal v. Tibbits, 160 Ind. 213, 39 N. E. 868; Henes v. Henes, 70. 66 N. E. 159. 5 Ind. .-Vpp. 100, 31 N. E. 832. '"State v. Brown, 80 Ind. 425; Hun- ■» Beach v. Bell, 139 Ind. 167, 38 N. sucker v. Smith, 49 Ind. 114. E. 819; Noerr v. Schmidt, 151 Ind. " Ryker v. Vawter, 117 Ind. 425, 20 579, 51 X. E. 332. N. E. 294. 47- INDIANA PROBATE LAW. § 293 husband, and that it is the pohcy of the law to so administer his estate as to secure to her, free from incumbrance, her interest in his lands. For this reason it is the duty of the husband's admin- istrator to apply all the personal assets in his hands, if necessar>', to pay liens on the land, even to the exclusion of all general cred- itors, and also to apply the proceeds uf the sale of two-thirds of his real estate.''^ It is the law of this state that the individual creditor of a de- ceased debtor shall have priority in the administration and pay- ment of the individual assets of the decedent over partnership creditors, and such partnership creditors can only have distribu- tion of the surplus of such assets, after the payiuent of his indi- vidual debts.'-'' The reverse of this rule is true when applied to a distribution of the partnership assets and the payment of part- nership debts. Creditors of the partnership then have the prior- ity as to payment. It is well, perhaps, in this connection to call attention to the change in our statute as regards the classification of judgments for payment. The statutes of 1876 used the words "judgments which are liens on the decedent's real estate," while the present statute is silent as to judgments, but as judgiuents which are not barred by the statute of limitations are "liens upon the real estate" of the deceased judgment creditor, it would seem that they are properly included in clause five of the section under consideration. The priority accorded them, therefore, is but a recognition of their quality as liens, and extends only to the property to which **Bowen v. Lingle, 119 Ind. 560, 20 bound to exhaust assets of the part- N. E. 534; Morgan v. Sackett, 57 nership before proceeding against the Ind. 580; Sparrow v. Kelso, 92 Ind. individual estate of a deceased part- 514; Shobe v. Brinson, 148 Ind. 285, ner. But before such creditor can 47 X. E. 625; Lewis v. Watkins, 150 participate with the individual cred- Ind. 108, 49 N. E. 944. itors in the individual estate of the ^ Weyer v. Thornburg. 15 Ind. 124 ; deceased partner, the decedent's in- Bond V. Nave, 62 Ind. 505; Hardy v. dividual debts must be paid, then the Mitchell, 67 Ind. 485 ; Bake V. Smiley, partnership liabilities may be satis- 84 Ind. 212; Warren v. Able, 91 Ind. lied either in whole or in part out 107; Huff V. Lutz, 87 Ind. 471; New of what remains. Small v. Davis, 12 Market Nat. Bank v. Locke, 89 Ind. Ind. App. 635, 40 N. E. 934; Warren 428. A partnership creditor is not v. Farmer, 100 Ind. 593. § 294 PAYMENT OF CLAIMS AND EXPENSES. 473 they attach as such hens, and so far as such property is concerned are payable in the order of their seniority. But when it comes to sharing in the general assets of the estate other than the par- ticular^'property to which they attach as Hens, they ^ are payable equally or ratably without regard to their seniority.'" The preference is given only to judgments rendered in the life- time of the debtor, and in no case does it extend to judgments which may be rendered against the executor or administrator.^' But where land has been sold by the executor or administrator against which were judgment liens, and by order of court the lien of such judgments was transferred to the funds arising from such sale, the judgments have no priority over expenses of ad- ministration, funeral expenses, and expense of last sickness; these, together with the widow's statutory- allowance, are entitled to payment before judgments, even where the estate is being set- tled as an insolvent estate.'^ § 294. Payment by order.— Upon the filing of any of the accounts required by this act and upon its appearing to the court that the estate is clearly solvent, the court shall order the distribu- tion of the moneys so received among the creditors of the de- ceased, whose claims have been allowed according to the order of classes before set forth: Provided. That the court may, if the same be found necessary to protect the interest of the estate, or to secure to the widow of the decedent her interest in his real e'^tate. order the pavment out of such moneys of any specific hen upon the real estate of the decedent: the court may order the moneys to be distributed by the executor or administrator, or may require the same to be paid in the court and distributed by the clerk thereof.'^ ^Kerr v. Wimer, 40 Mo. 544; Bas- Mo. 290, 42 S. W^ 820 ; Parker v. sett V. Slater, 81 Mo. 75; King v. Gainer, 17 Wend (N. Y.) 559. Morris 40 G^. 63; Tucker v. Yell, ^ Snyder v. Thieme &^; ^rew Co., 2 Ark. 420; Trust v. Harned, 4 1^3 Tnd. 659^ 90 N^ E^314 Su hvan Bradf. (N. Y.) 213. v. Horner, 41 N. J. Eq. 299, 7 Atl. - Davis V. Smith, 5 Ga. 274, 48 Am. 411. Dec. 279; Rutledge v. Simpson, 141 ^ Burns' R. S. 1908. § 2907. 474 INDIANA PROBATE LAW. § 295 An administrator or executor has a claim superior to that of the heirs to the assets of a decedent's estate until all the debts have been paid ;"" and until the debts of an estate are paid, a cred- itor cannot complain that such executor or administrator keeps possession of the money of the estate, and does not pay the same into court. ®^ If an executor or administrator has paid a just and valid claim he is entitled to credit therefor, although such claim was never filed or allowed against the estate. °^ Among creditors of equal degree — that is. in the same class — the executor or administrator may exercise his pleasure as to whom he will pay first. It is a matter within his own discretion. The order must conform to the statute determining the priority of debts, for neither the court nor the administrator have power to change the priority thus fi.xed."^ § 295. Penalty for delaying payment. — Nothing in the pre- ceding section shall operate to prevent or delay the payment of any claim that shall have been allowed if the estate be clearly solvent ; but it shall, in such case, be the duty of the executor or administrator, so fast as money shall come in his hands, to pay off the claims that have been allowed, giving preference, if any exist at the time of payment, as prescribed in the section prescrib- ing the order of payment. If any executor or administrator fail or refuse to pay any claim when he has moneys in his hands applicable to that purpose, he shall be chargeable with interest on such claim for such time as payment thereof shall have been wrongfully delayed, and shall also be liable in a suit on his bond, for the amount of the claim and ten per cent, damage thereon.®* It is the policy of the law that claims shall be paid as soon as the executor or administrator realizes funds out of which they ^'Bearss v. Montgomery, 46 Ind. Goodbub v. Hornung, 127 Ind. 181, 544. The question as to whether or 26 N. E. 770. not a claim should be paid as pre- " State v. Lemonds, 29 Ind. 437. ferred can be raised at the time of ®^Wysong v. Nealis, 13 Ind. App. the consideration of the final report, 165, 41 N. E. 388. either bv a petition or bv exceptions. "Jenkins v. Jenkins, 63 Ind. 120. " Burns' R. S. 1908, § 2908. § 296 PAYMENT OF CLAIMS AND EXPENSES. 475 can be paid ; and if he has the money in hand he can be compelled to pav even before the expiration of the year."'' § 296. Interest on claims. — By the last section of the stat- ute just quoted, it will be seen that "if an executor or administra- tor fail or refuse to pay any claim when he has moneys in his hands applicable to that purpose, he shall be chargeable with the interest on such claim for such time as payment thereof shall have been wrongfully delayed." This provision of the statute is in the nature of a penalty for the negligence of the executor or administrator, and hardly goes to the liability of an estate for interest u[K)n claims allowed. As a general rule, an administrator or executor is not charge- able with interest upon the money of the estate in his possession and control. But where it is the duty of an executor or admin- istrator to pay money in his hands to creditors, legatees or dis- tributees of the estate, and he needlessly delays such payment and neglects to make it when such payment is due, or where he has unreasonably and causelessly delayed the final settlement of the estate, and has used the funds of the estate for his own purposes, he will be chargeable with interest ; and in an aggravated case it is the dutv of the court to charge him with compound interest, computing the interest annually."" The principle deducible from the decided cases upon this subject is that one exercising such trust is liable for interest when he has improperly kept the bene- ficiaries out of the use of their money; and mere delay in closmg up an estate is held to sometimes be prima facie evidence of this." "Jewett V. Hurrle, 121 Ind. 404, ncy's fees when the contract creat- 23 N. E. 262. So long as there are ing the lien provides for such fees. debts to be paid, a creditor cannot Jewett v. Hurrle, 121 Ind. 404, 23 N. complain because the money is not E. 262. paid into court. State v. Lemonds, •'Johnson v. Hedrick, 33 Ind. 129, 29 Ind. 437. If property is sold to 5 .\m. Rep. 191; Brackenridge v. pay a specific lien thereon, and the Holland, 2 Blackf. (Ind.) 377, 20 executor refuses to pay the lien wilJi- Am. Dec. 123; Roberts v. Malin, 5 out an order of court before the ex- Ind. 18; Case v. Case, 51 Ind. 277; piration of a year from the issuing Shaw v. Bates, 53 Vt. 360. of letters, the creditor is entitled to "Manning v. Manning, 1 Johns, such order, and may recover attor- Ch. (N. Y.) 527; Dufour v. Dufour, 476 INDIANA PROBATE LAW. § 297 As to the liability of the estate of the decedent for interest upon claims, it may be said tliat, with the exception of contracts and obligations which expressly bear interest, unless the statute prescribes a different rule, the claims of creditors are to be treated with respect to the matter of interest just as they stood at the time of the decedent's death."' No interest can be allowed upon a claim, even though demanded, unless the paper or contract which is the basis of the claim shows that interest results as a matter of course from the facts stated."" As to whether or not a distributee or legatee is entitled to inter- est on his share of the ancestor's estate from the time of such an- cestor's death is a question upon which the courts are not agreed.^ Facts and circumstances must largely control, and our courts have, in a general way, given their sanction to the doctrine that interest may be allowed in certain cases. - ^ 297. Payment of money into court. — By act of the legis- lature, approved June 17, 1852. relating to the settlement of de- cedents' estates, an executor or administrator was authorized to pay money of the estate in his hands into court, which money was distributed and paid out by the clerk of such court. But the amendatory act of 1853 niodified this law so that it was no longer the duty of the clerk of the court to receive such money from an 28 Ind. 421; .\orris's Appeal, 71 Pa. = Case v. Case. 51 Ind. m\ Clark v. St. 106; Vance v. Vance, Z2 La. Ann. Helm. 130 Ind. 117, 29 N. E. 568, 14 1^6- L. R. A. 716n. In Spurway v. Glynn, ="' Schoulcr Exrs. & Admrs., § 440 ; 9 Ves. Jr. 483, the testator had de- Davis V. Wright, 2 Hill (S. Car.) vised to the trustees certain real es- 560; Sue. Durnford, 1 La. Ann. 92; tate. to the intent and purpose that Holmes v. Lusk, 78 Ky. 548. the trustees should, by demise, sale ^ "" Aguirre v. Packard. 14 Cal. 171, or mortgage of his real estate to /3 Am. Dec. 645. them devised, or anv part thereof, or 'Davies v. Hughes. 86 Va. 909, 11 by or out of the rents and profits, S. E. 488; Patterson's Appeal, 128 borrow or take up the interest, or raise Pa. St. 269, 18 Atl. 430; Jackson v. or levy, with all convenient speed Jackson, 28 Miss. 674. 64 Am. Dec. after his decease, the sum of four 114; Kyle v. Conrad, 25 W. Va. 760; hundred pounds sterling, and pay the Roberson v. Nail, 85 Tenn. 124, 2 S. same to the plaintiff. The plaintiff W. 19; King v. Talbot, 40 N. Y. 76; was held to be entitled to interest Williams V. Williams, 15 Lea (Tenn.) from the death of the testator 438; 2 Woerner Law Admin. 1222. § 297a PAYMENT OF CLAIMS AND EXPENSES. 477 executor or administrator ; nor was such executor or administra- tor authorized to make any such payments into court. The legis- lature, by this act, took away all authority from the court to re- quire, even by direct order, the payment of money into court by an executor or administrator. He was left solely responsible for the proper application of the funds coming into his hands in his trust capacity f but by the statute above set forth it will be seen that the earlier rule is, to a certain extent, revived, and the court "may require" an executor or administrator to pay money of the estate into court to be distributed by the clerk of such court. § 297a. Payment to heirs, etc., before final settlement. — An executor or administrator who, without an order of court, volun- tarily pays a part of the assets of the estate to the widow, heirs or legatees, before the final settlement of the estate, leaving in- sufficient means in his hands to pay the debts of the estate and the expenses of administration, and compensate himself for his senices, cannot recover from the parties to whom such payments were made sufficient money for the needs of the administration. The loss is his, for by such voluntary payment he is guilty of waste and is not entitled to relief.* To make such payment a voluntary payment so as to preclude a recover}- from the distributee to whom the payment was made, it must have been made with full knowledge of all the facts, or Avith full opportunity of obtaining such knowledge, otherwise such distributee is liable to refund, if necessary, for the payment of the debts and expenses of the estate." The better practice under our statute is to take a refunding bond where a distributive share is paid before final settlement of the estate. "Dufour V. Dufour, 28 Ind. 421; 'Smith v. Smith, 76 Ind. 236; Jenkins v. Lemonds, 29 Ind. 294; Stokes v. Goodykoontz, 126 Ind. 535 State V. Fleming, 46 Ind. 206; Scott 26 X. E. 391; Wolf v. Beaird, 123 V State, ex rel, 46 Ind. 203. 111. 585, 15 X. E. 161, 5 Am. St. 565; *E-bert V. Rush, 7 Ind. 706; Mc- Rogers v. Weaver, 5 Ohio 536; dure V. McClure. 19 Ind. 185. But Walker v. Hill, 17 Mass. 380 ; see Smith v. Smith, 76 Ind. 236; Wheadon v. Olds, 20 Wend. (N. Y.) Stokes V. Goodykoontz, 126 Ind. 535, 174 ; Alexander v. Fisher, 18 Ala. 374. 26 X. E. 391. 478 INDIANA PROBATE LAW. 297a It was early the law in this state that the heirs and distributees of an intestate could require the administrator to make a partial distribution of the assets in his hands. But it is necessary that the estate be clearly solvent before the court would make an order for such partial distribution; for, as a rule, the heirs and distribu- tees are not, as a matter of right, entitled to any part of the as- sets of the estate until after the debts are paid. And even where a partial distribution is ordered a refunding bond should be re- quired of the distributee." 'Burns' R. S. 1908, §2903; Con- ner V. Hawkins, 8 Blackf. (Ind.) 236; Chandler v. Morrison, 123 Ind. 254, 23 N. E. 160; Moore v. State, 49 Ind. 558. Advances to distributees prior to final settlement can only be made in compliance with an order of court. Hayes v. Mat- lock, 27 Ind. 49. On a proper peti- tion the court may order a partial distribution prior to a final settle- ment of the estate, and in such pro- ceeding may consider the question of advancements made by the decedent Chapell V. Shuee, 117 Ind. 481, 20 N. E. 417. CHAPTER XIII. ACCOUNTING AND SETTLEMENT. 298. Power to compel accounts. 299. What must be accounted for. 300. When liable for money depos- ited. 301. Not chargeable with loss by casualty, etc. 302. Liability of executor, etc., for interest. 303. The first account, what the statute requires. 304. Notice of a hearing on the ac- count. 305. The hearing and order. 306. Accounts by joint executors and administrators. 307. Filing further accounts. 308. Effect of approval of current report. 309. Vouchers must be filed. 310. When the court may order final settlement. 311. Allowance for compensation for services. ? 312. Compensation allowed by will. 313. Allowance for attorney fees. 314. Settlement on resignation, re- moval, etc. 315. The account in final settlement. 316. The time when final account shall be filed. 317. Xo final settlement with claim pending. 318. Notice of final settlement. 319. Contesting the report. 320. The order of final settlement. 321. Re-opening or setting aside final settlements. 322. Same— Party must show inter- est. 323. Same— For what causes. 324. Same — Limitation to action. 325. Same— Only set aside in direct proceeding. 325a. Accounting by trustees of be- nevolent devise. § 298. Power to compel accounts. — By the common law, on the theory that the executor or administrator took the absolute title to and dominion over the personal estate of his decedent, it was not the practice of the probate courts to require such offi- cers to render an account of their administration, nor even to compel an inventory. About the only way an accounting could be secured was at the suit of some person interested in the estate.' 'Walker Exrs., 150; Greenside v Benson, 3 Atk. 248; Roberts v. Rob- erts, 2 Lee 399 ; Lomax on Exrs., 307. 479 480 INDIANA PROBATE LAW. § 298 The practice in this respect in the probate courts of most, if not all, of the states of our Union, has been simplified by legisla- tion, and executors and administrators may now be comi^elled to render an account of their administration without waiting for creditors or distributees to apply for an order to that effect. Most of the statutes fix stated times at which executors and ad- ministrators must report the condition of their account with the estate and various penalties are provided to insure prompt ac- counting and settlement. Our statute requires an account to be filed in the court of pro- bate jurisdiction "at the end of one year from the issuing of let- ters and notice thereof or as soon thereafter as the sale notes for personal property shall mature."" And it is further provided that if any executor or administrator shall fail to render such account at the end of the year ne.xt after notice of his api)ointment lie shall be ciicd by the coiul tt» tde such account within a time lim- ited by the court; and uixju failure to comply with such require- ment, he shall be proceeded against as for a contempt, and shall be liable to removal from his trust.' It is further provided that it shall be the duty of the judge, on the first day of each temi of court, to call the estates pending in court for reports due from executors or administrators, as pro- vided for in this act: and if any executor or administrator shall fail to file a report when (hie, such judge shall enter an order that a citation be issued for such executor or administrator, re- quiring him to make and file such report, if the same is not filed in twenty days, and compel the making and filing of such report by attachment. And the executor or administrator shall be indi- vidually liable for all the costs occasioned by such citation and at- tachment ; said citation to be issued within ten days l>efore the next term of court thereafter.* § 299. What must be accounted for. — As one writer says: "The object of compelling executors and administrators to ren- - Burns' R. S. 1908. § 2906. * Burns' R. S. 1908, § 2909. ' Burns' R. S. 1908, § 2915 ; Ex parte Hayes, 88 Ind. 1. § 299 ACCOUNTING AND SETTLEMENT. 48 1 der an account of their administration at stated periods is very obvious, and highly beneficial to all the parties having an interest in the estate, whether as creditors, legatees, or next of kin, or as executors or administrators. It is to furnish, by the records of the probate courts, inexpensive, full, and accurate information of the condition of estates, so that all persons concerned therein may resort to these records with confidence, ascertain their rights, correct errors in the accountant's administration, and take measures to protect themselves against loss by his fraud or negli- gence. To accomplish this object it is necessary that the account should constitute a full and explicit exposition of the condition of the estate, showing what property has come into the adminis- trator's hands, what he has disposed of or disbursed, what re- mains, and what the liabilities are so far as ascertained."^ Every executor and administrator shall be chargeable at their value, with all goods, chattels, moneys, rights, credits and effects of the deceased which shall have come to his hands, and which, by law, are to be administered, although they may not have been included in an inventory ; also, with all inventories of real estate sold, leased, or mortgaged for the payment of debts or legacies, and with all increase, interest, profit, and income which shall in any way come to his hands from the estate of the deceased. And in accounting therefor, he shall be entitled to credit for the amount taken by the widow of the deceased; the loss, if any, on the sale of personal or real estate; the appraised value of prop- erty inventoried by him, and lost or destroyed without any fault or negligence of his own ; the losses and deductions by reason of the compounding of debts; the discharge from the collection of insolvent and desperate claims, set-offs, counter-claims, and pay- ments allowed against claims due the estate; and for moneys legally paid out on expenses of administration and claims against the estate and legacies, and advanced to the heirs under the order of court.* An administrator or executor is chargeable with all the per- • Woerner Am. Law Admin., § 509 ; ' Burns' R. S. 1908, § 2911. Fletcher v. Nicholson, 45 Ind. App. 375, 90 X. E. 910. 31— Pro. Law. 482 INDIANA PROBATE LAW. § 3OO sonal property of the estate of his decedent, which is by law to be administered, tliat conies to his possession or knowledge, whether such property has been inventoried or not : but it is not proper to charge him with property which he has failed to inven- tory for the reason that the existence of such property was un- known to him." He should charge himself with any debt he may be owing the estate.® But he is not bound to charge himself with a debt for which he is only contingently liable, nor with one owing to a former ad- ministrator of the decedent." The inventory is the foundation of the account and the aggre- gate amount of it should constitute the first charge against execu- tor or administrator. To this should lie added any excess of the sale bill over the inventory, as well as any additional property inventoried. The inventory is not conclusive though, and the truth of it may be inquired into on final settlement.*" §300. When liable for money deposited, — It an executor or administrator deposit moneys belonging to his decedent's es- tate, in a bank of good repute, and which he has good reason to believe is solvent, he cannot be held liable for the loss of such money resulting from the failure of such bank. Such insolvency will not afifect him unless he knew it, or unless it was generally known, or unless there were general rumors affecting injuriously the credit of the bank, which were known to such executor or ad- ministrator, or might have been so known by reasonable care and diligence on his part. His liability in such a case is a ques- tion of negligence, and where there is no evidence tending to show negligence there can be no liability." ' State, ex rel., v. Scott, 12 Ind. 529. merit. Condit v. Winslow, 106 Ind. 'State V. Gregory, 119 Ind. 503, 22 142. 5 N. E. 751. N. E. 1 ; Rabb's Estate. 16 Ohio St. ' Shields v. Odell, 27 Ohio St. 398. 273: Baucus v. Stover, 89 N. Y. 1. '"Weed v. Lermond. 33 Me. 492; Debts owing by an executor or admin- McGinity v. McGinity. 19 R. I. 510. 34 istrator to an estate must be account- Atl. 1114. ed for on final settlement, although '^ Norwood v. Harness, 98 Ind. 134. such executor or administrator be- 49 Am. Rep. 739. The question in all comes insolvent after his appoint- such cases is, was the trustee reason- lOO ACCOUNTING AND SETTLEMENT. 483 But where an administrator or executor deposits funds of the estate in a bank in his individual name, any loss which occurs by reason of the failure of such bank is his individual loss, and does not relieve him from liability to account for and pay over the full amount of such deposit.^^ The commingling of money or property of the estate with his own by an executor or administrator so that the identity of the trust fund is lost, is a breach of the trust for which he will be held liable if any loss occurs.'^ The mere fact that in such case the executor or administrator acted in good faith and with ordi- nary prudence is no excuse/* And if he deposits funds of the estate in a bank in his indi- vidual name, having no other funds on deposit, he will be liable in case of loss, although at the time of making the deposit he informed the bank that the funds were trust funds, and held by him only in that capacity.'^ able and diligent in making or contin- uing the deposit. In Cornwell v. Deck, 8 Hun (N. Y.) 122, an admin- istratrix having kept the money of the estate in her hands instead of deposit- ing it in a bank, the nearest bank be- ing twelve miles distant, the money was stolen and she was held liable. The court said : "It is repeatedly held that if a trustee, in the exercise of his best judgment, deposits money in a bank of good repute, he is not liable in the event of the failure of the bank. Her husband had kept a bank account, of which she was aware. * * She should have done the same." ^-'Corya v. Corya, U9 Ind. 593, 22 X. E. 3; Xaltner v. Dolan, 108 Ind. 500, 8 N. E. 289, 58 Am. Rep. 61; Fletcher v. Sharpe, 108 Ind. 276, 9 N. E. 142. "Trust money may be depos- ited for a reasonable time in a bank having good credit, if the deposit is made to the credit of the trust estate, and not in the trustee's individual name and account; and the trustee does not become liable for a loss oc- casioned by a failure of the bank un- der these circumstances." 2 Pom. Eq. Jur.. § 1067; McCabe v. Fowler, 84 N. Y. 314. While it is presumed in its trust character, if he exercises the same caution in respect to depositing it. as a prudent man would in regard to his own money and a loss happen he will be excused. Norwood v. Har- ness, 98 Ind. 134, 49 Am. Rep. 739; State V. Greensdale, 106 Ind. 364, 6 X. E. 926, 55 Am. Rep. 753. '^ Gilbert's Appeal, 78 Pa. St. 266; Kirkman v. Benham, 28 Ala. 501 ; Net- tles V. McCown, 5 S. Car. 43; Leake v. Leake, 75 Va. 792; McKenzie v. Anderson, 2 Woods (U. S.) 357; Wren v. Kirton, 11 Ves. 377; Acker- man V. Emott, 4 Barb. (N. Y.) 626. "Commonwealth v. McAlister, 28 Pa. St. 480 ; Henderson v. Henderson, 58 Ala. 582. "' Williams v. Williams, 55 Wis. 300, 12 N. W. 465, 13 N. W. 274, 42 Am. Rep. 708, contra. See Atterberry v. 484 INDIANA PROBATE LAW. § 3OI To create a liability there must be an actual loss while the funds are so mingled.^" And to avoid liability the trust funds must be kept separate by some plain and unmistakable act.^' § 301. Not chargeable with loss by casualty, etc. — Ordi- narily an executor or administrator is only held liable to the exercise of reasonable care in the preservation and protection of the property of the estate in his hands, and is not chargeable with loss by casualty, such as accidental fire, robbery, theft and the like, to which his own negligence or bad faith have in no way contributed." He must adopt such precautions against loss, and exercise such forethought for the security of property as comes into his care as ordinarily prudent men are accustomed to employ in regard to their own property. '° It is not incumbent upon the executor or administrator to in- sure or continue insurance upon property of his decedent.^" If it becomes necessary for an executor or administrator, in the conduct of the ordinary course of the business of the estate, to employ an agent therein, and if in such employment he has acted in good faith, and been guilty of no negligence in employ- ing the particular person, he cannot be held liable for any loss McDuffee, 31 Mo. App. 603; Arguello, to judgment. It is contended that the Estate of, 97 Cal. 196, 31 Pac. 937. administrator ought to have kept the '" Kirby v. State, 51 Md. 383. property insured, and that he is liable '' Ditmar v. Bogle, 53 Ala. 169. for having neglected to do so. No " Rubottom V. Morrow, 24 Ind. 202, authority is cited for this proposition, 87 Am. Dec. 324; Neff's Appeal, 57 and we know of none. What little Pa. St. 91 ; Stevens v. Gage, 55 N. H. there is in the books, so far as our 175, 20 Am. Rep. 191 ; State v. Mea- search and that of counsel has ex- gher, 44 Mo. 356, 100 Am. Dec. 298; tended, is the other way. Williams Campbell v. Miller, 38 Ga. 304, 95 Am. on E.xrs., 1638, 2 Har. Dig. 2998. Dec. 389. In Rubottom v. Morrow it These works cite Bailey v. Gould, 4 is said : "A mill, which was leasehold Y. & Coll. 221." property, was destroyed by accidental '" Cooper v. Williams, 109 Ind. 270, fire, being, at the time it was burned, 9 X. E. 917 ; Rice's Estate, 14 Phila. let to responsible parties who, by the (Pa.) 325. terms of their lease, were bound to "^ Dortch v. Dortch, 71 N. Car. 224; repair, but who became insolvent, so Rubottom v. Morrow, 24 Ind. 202, 87 that the money was not made upon Am. Dec. 324. their liability, though it was reduced § 302 ACCOUNTING AND SETTLEMENT. 485 occasioned by the misconduct of such individual. Necessity for such employment will exonerate the executor or administrator.^* It is said by one writer that "if the personal property belong- ing to the estate be destroyed or captured by a public enemy, or perish, or deteriorate from some internal defect, or through the operation of natural causes, or in general because of inevitable accident, the executor or administrator who has honestly exer- cised ordinary care and diligence in averting or lessening the mischief escapes personal liability for the loss. He is himself no insurer against accidents, though average prudence as to certain kinds of property might perhaps have required him to keep the property insured against loss by fire."" The true rule is that an executor or administrator is bound to exercise that degree of diligence and prudence in the care and management of the estate which men of ordinary discretion and intelligence employ in like affairs of their own. § 302. Liability of executor, etc., for interest. — An execu- tor or administrator will be held liable for any interest he may collect on debts and demands due the estate of his dece- dent.-^ And he will be chargeable with interest on the fund in his hands belonging to the estate, where he has needlessly and improperly kept the beneficiaries of the estate out of the use of their money; and mere delay in making a final settlement of the estate is sometimes prima facie evidence of this. And where, in a proper case, an executor or administrator is so liable for in- terest, the computation of such interest should be made annually and compounded, charging him with interest upon interest.'^* Interest will only be charged where an executor or adminis- trator has actually received it ; or where he retained money in his "" Jacobus V. Jacobus, Zl N. J. Eq. v. Schenck, 10 Pa. St. 285, 51 Am. 17 : Julian v. Abbott, 11 Mo. 580 ; Mc- Dec. 478n. Closkey v. Gleason, 56 Vt. 264, 48 Am. "-^ Schouler Exrs., 314. Rep. 770: Watson v. Stone, 40 Ala. ^ Ante, § 148; Ray v. Dougherty, 4 451, 91 Am. Dec. 484; Lewis v. Reed, Blackf. (Ind.) 115. 11 Ind. 239; Telford v. Barney, 1 =^ Johnson v. Hedrick, 33 Ind. 129, 5 Greene (Iowa) 575; Marshall v. Am. Rep. 191; Dufour v. Dufour, 28 Moore, 2 T. B. Mon. (Ky.) 69; Blight Ind. 421. 486 INDIANA PROBATE LAW. § 303 own hands which he ought to have paid out; or where he has converted such money to his own use."^ But as a rule they will not be chargeable with interest during the first year of the administration, except such as they have ac- tually received, unless they have misappropriated the funds dur- ing that time.*" An administrator is also chargeable with interest upon uncol- lected notes which bear interest."' Executors or administrators are not chargeable with interest on funds which lie idle during the pendency of their accounts in court on exceptions thereto, or on appeal,-^ unless interest has been received. The courts show greater reluctance in charging executors or administrators with interest on funds which lie idle in their hands, than in the case of trustees, their duty being to administer and not to invest."" To make out a case for compound interest there must be some special and i>eculiar circumstances, involving a breach of duty be- yond mere negligence. ^'^ § 303. The first account — What the statute requires. — The statute provides that at the end of one year from the issuing of letters, and notice thereof, or as soon thereafter as the sale notes for personal property shall mature, the executor or administrator shall file in the court issuing his letters a true and complete account of all the assets of the estate of the decedent which shall have come to his hands, and of all disbursements made by him, and all credits to which he may be entitled; in such account he shall charge himself with the amount of each inventory of personal and real estate filed by him, with "-" Hough V. Harvey, 71 HI. 72; Nor- " Stong v. Wilkson, 14 Mo. 116. ris's Appeal, 71 Pa. St. 106 ; Hall v. =* Yundt's Appeal, 13 Pa. St. 575, 53 Grovier, 25 Mich. 428 ; Knight v. Loo- Am. Dec. 496 ; Young v. Brush, 38 mis, 30 Me. 204; Lund V. Lund. 41 X. Barb. (N. Y.) 294; Wendell v. H. 355 ; Perry Trusts, § 468. French, 19 X. H. 205. "^ Brandon v. Hoggatt, 32 Miss. 335 : "^ Wyman v. Hubbard, 13 Mass. 232. Commonwealth v. Mater, 16 Serg. & ^Lansing v. Lansing, 45 Barb. (X. R. (Pa.) 416; Jacot v. Emmett, 11 Y.) 182; Kenan v. Hall, 8 Ga. 417; Paige (X. Y.) 142. Boynton v. Dyer, 18 Pick. (Mass.) 1. 503 ACCOUNTING AND SETTLEMENT. 487 each item of principal or interest, or both, collected by him, in addition to the amounts thereof, as shown by the inventories and sale bills filed by him, with the profits realized in the sales of property; with the kind and value of all property of the decedent received by him and not inventoried, with each claim and the amount thereof due the deceased, and not inventoried, and with all income, rents and other increase of the estate received by him and chargeable to him as such executor or administrator. He shall also exhibit in such account the total amount of moneys received by him, and the total amounts thereof paid out on ac- count of the estate, and the particulars and amount of each claim, due or owing to the estate and remaining unpaid, and his claim for services, expenses and attorney fees ; such account shall be accompanied by the affidavit of the executor or administrator, subscribed by him, that the account is a true and complete exhibit of his administration of the estate, and upon the finding of the court upon any report showing the receipts and expenditures by the executor or administrator, an appeal will lie to the Supreme Court, as in final judgment.'"'^ This account may be in the nature of a current account, or it may be a complete and final settlement of the estate. If the executor or administrator has collected all the assets and paid them out on claims allowed against the estate, it is his duty under the law to make a final settlement of such estate after the lapse of one year from giving notice of his appointment.^- The items of the inventory need not be repeated in the account but only the gross amount thereof.^^ All assets of the estate received by the executor or adminis- trator whether inventoried or not and all profits derived by him from the assets, either directly or indirectly, must be charged " Burns' R. S. 1908. § 2906. of the claim did not justify the settle- " Shirley v. Thompson, 123 Ind. 454, ment in advance of the time named in 24 N. E. 253; Roberts v. Spencer, 112 the statute. Shirley v. Thompson, 123 Ind. 81, 13 N. E. 127; Fleece V. Jones, Ind. 454, 24 N. E. 253. 71 Ind'. 340. In such case the fact "Sheldon v. Wright, 7 Barb. (X. that the administrator had no notice Y.) 39. 488 INDIANA PROBATE LAW. § 3O4 against him in his final report, although they may not be in- cluded in his account.** Tlie statute contemplates the final settlement of an estate at the end of a year and if this cannot be done at that time an account must be filed showing what has been done and why a final settle- ment could not be made at that time. § 304. Notice of a hearing on the account. — Whether such account, when filed, is in current or in final settlement, notice of the time fixed for the hearing thereon may be given, with this exception, that in cases of current settlements, such notice is at the discretion of the executor or administrator, while in cases of final settlement, such notice is mandatory. The statute is as follows: "Upon tlie filing of such account, the clerk siiall fix a day, in term time by indorsement on the account, not less than three weeks from the date of filing, when the account will be heard; and if the account is for final settlement, or if partial, only, yet in the opinion of the executor or administrator is of sufficient importance to require final action thereon, said execu- tor or administrator shall give notice to all persons interested in said estate to appear in court on such day and show cause why such account should not be approved, which notice shall be given by publication in some weekly newspaper of general circulation, published in the county in which the administration is pending, and by posting at the court-house door for two consecutive weeks. If the account is filed for final settlement, the notice shall also re- quire the heirs of the decedent, and all others interested, to appear and make proof of their heirship to any part of said estate : Pro- vided, however. That when an account is filed, and no notice of the hearing of the same is required, it shall not be necessary for the clerk to fix a day in the future for the hearing thereof, but the same may be acted on at any time by the court."" " McKnight V. Walsh. 24 X. J. Eq. « Burns' R. S. 1908. § 2912. The no- 498; Hurlburt v. Wheeler, 40 X. H. tice provided for in this section may 7Z\ Gardner v. Gardner, 7 Paige (N. be signed by the clerk of the court, Y.) 112; Norris's Appeal, 71 Pa. St. and is not insufficient because directed 106. to the heirs, creditors and legatees of § 305 ACCOUNTING AND SETTLEMENT. 489 If the report filed is a final account, and the time is fixed for hearing thereon by the judge, instead of by the clerk, as required by this statute, it will not be cause sufficient to set aside a final settlement.^'' . . Where notice is given, although it may be defective, the juris- diction of the court to hear the report is not ousted." But to make a final settlement binding upon interested parties, it would seem that, in addition to the above notice, they should have been personally summoned to attend the hearing.^' A notice, of a current account, to "all persons interested m the estate,"' is sufficient, but they must have notice if an adjudi- cation is wished upon any matter in such report.^« The admin- istrator can take no advantage of his failure to give notice.^" § 305 The hearing and order.— If a time has been fixed in accordance with preceding section for the hearing on an account in current settlement, or if such account is a final one, the court shall proceed upon the day fixed to hear said account; the exec- utor or administrator shall attend the hearing and submit, if re- quired, to an examination, under oath, touching the account and the expenses of administration. Any person interested m the distribution of the assets may appear and contest the correctness of the account, and witnesses may be compelled to attend and testify touching any matters material thereto; if the court find that the account is erroneous, it shall order an immediate amend- ment or new account, as the case may require. If the same be the estate, instead of to all persons in- report. Jones v. Jones, 115 Ind. 504, terested. Roberts v. Spencer, 112 Ind. 18 N. E. 20. nr t ^ ^04 19 N 81 13 X. E. 127. " Jo"^^ ''• J°"^'' ^^^ ' -WiUiam's V. Williams, 125 Ind. E. 20. 156. 25 N. E. 176. If the time for - Crum v. Meeks, 128 Ind. 360, -/ hearine is fixed by the court, instead N. E. 722. 1,0 t ^ si n of be"L fixed by the clerk, it will be - Roberts v. Spencer 112 Ind. 81 13 ot bemg nxeu uy ., ' ^ .., >- -p 107 • Barnett v. Vanmeter, 7 Ind. no cause for setting aside final settle- V E- j^^ ' ^^™^" ment. A defective notice will not oust App- 45 33 N^ E. 666. ^e court of jurisdiction to hear the « Dav,s v. Davis, 6 Ala. 611. 490 INDIANA PROBATE LAW. § 305 found correct, the court shall approve the same and fix the amount to be allowed for expenses of administration to date." Under this section of the statute, exceptions to a current ac- count should not be entertained for any other purpose than to test the correctness of the report.*" Upon exceptions filed to current reports issues may be formed, evidence heard and the court may make a special finding of facts and state conclusions of law thereon. The court says that ''while the proceedings to test the correctness of an administra- tor's report is not, in a broad and technical sense, a civil action, yet tiie report and the exceptions form both issues of fact and of law, for the court to determine, and we are unable to see any valid objections to the court making a si>ecial finding of facts and stating its conclusions of law thereon."" The report filed by an executor or administrator stands as a complaint in the probate court, and the exceptions filed thereto constitute an answer and the cause is to be heard upon the issue they make.'* When an executor or administrator files a report, the court " Burns' R. S. 1908, § 2913. An or- (kr tlie provisions of the statute, the der. made on the iicaring of a partial court has the power to make correc- account, for distribution, or for an al- tions in the record, and to cause mis- lowance of a credit for payment, to takes in accounts current to be recti- an heir or legatee, is not binding upon ficd. Until the final settlement is the other heirs or legatees, so far as made, accounts and reports may be re- it determines the right of any one to viewed and errors corrected. Harrell the money as heir or legatee, when v. Seal, 121 Ind. 193, 22 X. E. 983. the only notice of the hearing is by Such an order may be set aside on the publication and posting. Glessner v. application of one appointed adminis- Clark, 140 Ind. 427, 39 N. E. 544. A irator as successor to the administra- claimant not having appeared, and not tor on the hearing of whose account having been summoned to appear at the order was granted. Glessner v. the final settlement, is not concluded Clark. 140 Ind. 427, 39 X. E. 544. by the judment. Shirley v. Thomp- '"■ Swift v. Harley, 20 Ind. App. 614, son, 123 Ind. 454, 24 X. E. 253. Ex- 49 X. E. 1069; Taylor v. McGrew, 29 ceptions to an account current are Ind. App. 324, 64 X. E. 651. proper under this section, only for the ** Spray v. Bertram, 165 Ind. 13, 74 purpose of testing its correctness. X. E. 502; Johnson v. Central Trust Christie v. Wade, 87 Ind. 294. Co., 159 Ind. 605, 65 X. E. 1028. *= Christie v. Wade, 87 Ind. 294. Un- § 306 ACCOUNTING AND SETTLEMENT. 49 1 not only has statutory authority but inherent power, to approve such report, or to reject it and order a new one filed. ^^ If notice of a hearing upon a current report has been given as required in the preceding section, the adjudication of the court upon the account as to all matters necessarily involved therein is binding and conclusive.**^ § 306. Accounts by joint executors and administrators. — Co-executors and co-administrators take the same interest and estate in the property of their decedent. Their right is joint and entire and incapable of being severed. They are considered in law as one person, and if one or more of the number die or re- sign, or be removed, the estate passes to and vests in those re- maining. The act of one is deemed to be the act of all even though they administer on different parts of the estate.*' Accounts may be rendered by one or more joint executors or administrators. The account may be a joint account or it may be the separate account of each. As each one is entitled to re- ceive and keep the assets of the estate, he is entitled to file his separate account to show for what part of the estate he is re- sponsible.** Where, however, a joint account is filed, all will be liable as *^ Swift V. Harley, 20 Ind. App. 614, l)ind a party interested; hence a dis- 49 N. E. 1069. tinction is sometimes taken between '"Burns' R. S. 1908, § 2926. "It is the rendering of an account and its the province of the probate court to settlement, the former being the act of pass upon the account, determining tlie executor or administrator consti- judicially what assets the executor tuting the basis of the settlement, the or administrator is chargeable with, latter the act of the court, judicially and to what credits he is entitled; and determining — settling — the questions it results from this authority that the involved." Woerner Am. Law. Ad- decision of any question upon which min., § 502. there was an issue between the par- *' Schouler Exrs., § 400: Redf. on ties becomes an adjudication thereof. Wills, § 222; Barry v. Lambert, 98 N. which cannot be impeached, except in Y. 300, 50 Am. Rep. QT . a direct proceeding by appeal or for *' Barclay v. Morrison, 16 S. & R. fraud. It is apparent that the mere (Pa.) 129; Bellerjeau v. Kotts, 4 N. rendering of the account, even if ap- J. L. 359; Heyer's Appeal, 34 Pa. St. proved by the court in an ex parte 183. proceeding, can have no validity to 492 INDIANA PROBATE LAW, § 307 shown by the account, unless the presumption raised thereby is rebutted.'*® And some of the cases go so far as to hold that filing a joint account is more than prima facie evidence of a joint liability; that it is conclusive, and the fact that a joint ac- count is filed, of itself makes the executors or administrators joining therein jointly liable.^" In this state, when an account is rendered by one or more joint executors or administrators, the court may, in its discretion, al- low the same to be verified by any one of them.'^^ Accounts which are joint in form, if really filed by only one executor, will not bind his co-executor.^* When one of two executors presents his account for settle- ment his associate may contest it." Where they keep separate accounts, each charging himself with so much of the estate only as comes into his own hands, neither is chargeable with the assets in the hands of the other, and either of them is entitled to his discharge by showing a proper administration of all tlie estate that came into his own hands." § 307. Filing further accounts. — With the exception of the first account the statute fixes no time within which an admin- istrator or executor shall make report. If the estate is not closed at the end of the year with the filing of the first account provided for, any further accounting is at the discretion of the court, except that unless good cause is shown, a final settlement must be made at the end of six months after any "last" account shall have been made. The statute reads : "After the expiration of one year from giving notice of ap- pointment, the court may, at any time in its discretion, order a '"Suydam v. Bastedo, 40 X. J. Eq. Laroe v. Douglass, 13 X. J. Eq. 308; 433, 2 Atl. 808; Conner v. Mcllvaine, Young's Appeal, 99 Pa. St. 74. 4 Del. Ch. 30 ; Glacius v. Fogel, 88 N. " Burns' R. S. 1908, § 2910. Y. 434. Each executor or administra- '" English v. Xewell, 42 X. J. Eq. 76, tor is liable only for the assets re- 6 Atl. 505. ceived by him. Call v. Ewing, 1 "Mead v. Willoughby, 4 Dem. (X. Blackf. (Ind.) 301. Y.) 364. '"Haage's Appeal, 17 Pa. St. 181; "Davis's Appeal, 23 Pa. St. 206; Bellerjeau v. Kotts, 4 X. J. L. 359. § 307 ACCOUNTING AND SETTLEMENT, 493 further accounting by the executor or administrator, and if it appear to the court that the settlement of the estate is being un- reasonably and unnecessarily delayed, the court may enter a peremptory order for the final settlement, and enforce compli- ance with the order by the attachment of the person of the exec- utor or administrator, and punishment for contempt : Provided, however, it shall be the duty of the executor or administrator to make final settlement of the estate at the expiration of six months from the date of his last report, unless otherwise ordered by the court for good cause shown."^° The current account filed by an executor or administrator is prima facie evidence of the amount due the estate remaining in his hands at the time his report is filed. ^^ The same rules as to notice and hearing apply to accounts filed under this statute as are required in case of other reports. The statute says : 'Tf an account be filed after the expiration of the year afore- said, the day for hearing the same shall be fixed, and the same rules as to giving notice of the hearing shall be followed as here- inbefore provided for notice of accounts filed at the end of the year."^^ It is the duty of an executor or administrator, when ordered so to do, to prepare and file his further account in the court in which the administration is pending, and his neglect to file such report for the space of nearly a year after the time fixed by the court for that purpose, will justify the court in removing him.^^ An administrator is not excused for his failure to file a further account by the fact that a previous report filed by him has never been acted upon.^^ Where assets have come to the hands of an executor or ad- ministrator after he has filed his partial report, he is bound to include such assets in his next report.®" But a further account- ing will not necessarily be ordered merely because additional " Burns' R. S. 1908, § 2916. '' Evans v. Buchanan, 15 Ind. 438. "^ Lane v. State, 27 Ind. 108. =• Ex parte Pearce, 44 Ark. 509. " Burns' R. S. 1908, § 2917. «" Witman's Appeal, 28 Pa. St. 376; 494 INDIANA PROBATE LAW. § 30S assets have come to his hands. The accounting may be post- poned, in the discretion of the court, until the final accounting."^ The proper number of each report should be stated on its face, and a final report should distinctly purport to be such.®- But the mere fact that an account, which on its face appears to be final, is not so styled in the caption will not prevent its being so considered.''"' Every item of receipt and expenditure should be distinctly en- tered in such reports."^ ^ 308. Effect of approval of current report. — The order or action of a court in allowing or passing upon a current report made by an administrator or executor in partial settlement of his decedent's estate, is considered as merely an interlocutory order, and as such it was held that, in the absence of some stat- ute authorizing an appeal, no api^^al would lie in such case.'"' The statute now, it will be obsened, authorizes an appeal. The language is, ''and upon the finding of the court upon any report showing the receipts and expenditures by the executor or admin- istrator, an appeal will lie to the Supreme Court, as in final judgment."*" And such partial or current accounts filed by an executor or administrator, from time to time, until final settlement, are not conclusive, either for or against him, and while they are to be regarded as prima facie correct, yet frauds or mistakes in them may be corrected. The action of the court in approving such accounts is an ex parte proceeding, and does not preclude a fur- Shaffer's Appeal, 46 Pa. St. 131. "' Burns* R. S. 1908, § 2906. An ad- " Wetmore V. Wetmore, 3 Dem. (N. niinistrator cannot make a legal set- Y.) 414. tlement until the expiration of one ""- Bennett v. Hanifin, 87 111. 31. year from the date at which his let- •^ Stevenson v. Phillips, 21 X. J. L. ters were issued, and the giving of 70. notice thereof. An administrator can- *^ Stone V. Stillwell, 23 Ark. 444; not defeat a claimant's right to file Hutchinson's Appeal, 34 Conn. 300; his claim within the year by making In re Jones, 1 Redf. (N. Y.) 263. a premature settlement. Shirley v. •« Goodwin v. Goodwin, 48 Ind. 584 ; Thompson, 123 Ind. 454, 24 N. E. 253. Wood v. Wood, 51 Ind. 141 ; Thiebaud v. Dufour, 57 Ind. 598. § 308 ACCOUNTING AND SETTLEMENT. 495 ther investigation of the subject. All such ex parte orders and partial reports are considered as interlocutory and are subject to revision at any time before final settlement. They, however, are not subject to a collateral attack; and if attacked it must be in a direct proceeding brought in the proper court for that pur- pose. '^^ Exceptions to a current report of an executor or administra- tor, taken by "any person interested in the distribution of the assets" of the estate, are proper only to test the correctness of such report, and for no other purpose. If the report is incorrect, it should be amended, or a new one filed; but if it is correct in so far as it goes, and no additions are required, it should be ap- proved, and leave all collateral questions to be settled by inde- pendent proceedings, and not by exceptions to the report.*'® In this state it is provided by statute that in every settlement of an account rendered by an executor or administrator, all his former accounts may be so far opened as to correct any error or mistake therein ; excepting that any matter in dispute between two parties, which had been previously heard and determined by the court shall not be brought again in question by either of "Goodwin v. Goodwin, 48- Ind. 584; ered. Goodbub v. Hornung, 127 Ind. Allen V. Clark, 2 Blackf. (Ind.) 343; 181, 26 N. E. 770. State, ex rel., v. Brutch. 12 Ind. 381 ; "« Christie v. Wade, 87 Ind. 294. An Candy v. Hanmore, 76 Ind. 125 ; order, made on the hearing of a par- Fraim v. Millison, 59 Ind. 123; State, tial account, for distribution, or for ex rel., v. Wilson, 51 Ind. 96; Sherry an allowance of a credit for payment, V. Sansberry, 3 Ind. 320; Glidewell v. to an heir or legatee, is not binding Snyder, 72 Ind. 528; Collins v. Tilton, upon the other heirs or legatees, so 58 Ind. 374; Thiebaud v. Dufour, 57 far as it determines the right of any Ind. 598. one to the money as heir or legatee. Until the final settlement is made when the only notice of a hearing is accounts and reports may be reviewed by publication and posting. Glessner and errors corrected. Harrell v. Seal, v. Clark, 140 Ind. 427, 39 N. E. 544. 121 Ind. 193, 22 N. E. 983. In most Such an order may be set aside on the matters relating to the filing, exami- application of one appointed adminis- nation and approval or disapproval of trator as successor to the administra- reports in probate matters, strict for- tor on the hearing of whose account niality is not required ; substance the order was granted, rather than form should be consid- 496 INDIANA PROBATE LAW. § 308 the same parties, without notice to the opposite party and by leave of the court/® The approval of the partial report of an executor or admin- istrator, and the allowance of a credit and voucher presented by him, while prima facie correct is not conclusive, when made in the due course of administration and without adversary pro- ceedings.^" In one case it is said by the court, "the various re- ports of an executor or administrator, in the course of admin- istration, referring to each other as they do, may, in some sense, be regarded as one report; and we think that on a final settle- ment, while they should be treated as prima facie correct, they may still be so far opened up as to correct any frauds or mis- takes therein."'^ Under this statute, as well as by force of the general rule, errors on a partial account may be corrected in a subsequent ac- count.^" And it is not necessary to such correction that exceptions should have been filed to the report.''' Where the proper notice has been given for a hearing upon an account in partial settlement, and the proper parties are before the court having exclusive jurisdiction of such matter, and either "Burns' R. S. 1908, § 2926. "The v. Tilton, 58 Ind. 374; Harrell v. Seal, current or partial reports of an exec- 121 Ind. 193, 22 N. E. 983. "We can- utor or administrator are generally ex not agree with counsel in this conten- parte in their character, and for this tion, but, on the contrary, must hold reason the allowance by the courts of that upon a final accounting, all previ- such reports is not conclusive upon ous or current reports are subject to the heirs or devisees of the decedent." review and correction." Duckworth Fraim v. Millison, 59 Ind. 123 ; Good- v. Kirby, 10 Ind. App. 139, Z7 N. E. win V. Goodwin, 48 Ind. 584. 729. ^'' State V. Wilson,. 51 Ind. 96; State "Jenison v. Hapgood, 7 Pick. V. Brutch, 12 Ind. 381. If the e.xec- (Mass.) 1, 19 Am. Dec. 258; Sipperly utor reports that he has paid a legacy v. Baucus, 24 N. Y. 46; Arnold v. and is given credit for it, the legatee Mower, 49 Me. 561 ; Brandon v. may show that such report is untrue Brown, 106 111. 519; Scott v. Fox, 14 and have the same corrected. Har- Md. 388; Adams v. Adams, 21 Vt. rell v. Seal, 121 Ind. 193, 22 N. E. 983. 162; Buchanan v. Grimes, 52 Miss. 82. ■^Goodwin v. Goodwin, 48 Ind.. 584; "Goodwin v. Goodwin, 48 Ind. 584. Fraim v. Millison, 59 Ind. 123 ; Collins § 309 ACCOUNTING AXD SETTLEMENT. . 49/ do, or have the opportunity to, contest the correctness and va- Hdity of such account, the judgment and order of the court ap- ^ proving and passing the account is as conclusive as if rendered on a final settlement, and is a bar, as to the matters determined by such judgment, to all inquiry at the final settlement.'^* As a general rule, however, it is not customary to give any notice of a hearing upon a current report and hence, the action of the court thereon concludes no one, and such report stands only as prima facie evidence of the correctness of such account and may be contradicted upon the final settlement. § 309. Vouchers must be filed. — In rendering an account, every executor or administrator shall produce vouchers for all debts, claims and legacies paid, and for all charges and expenses, which vouchers shall be filed and preserved in said court, ex- cept that on the settlement of an account the executor or admin- istrator may be allowed any item of expenditure not exceeding five dollars, for which no voucher is produced, if such item be supported by his own oath positively to the fact of payment, specifying when and to whom such payment was made and if such oath be uncontradicted; but such items allowed shall not in all exceed one hundred dollars for payments in behalf of any one estate. ^^ Where a court has ordered a guardian to expend certain moneys on behalf of his ward, and the money of the ward is yet in the hands of the administrator of the deceased parent or ancestor of such ward as a part of such decedent's estate unad- ministered, the expenditure of the money by the administrator on behalf of such minor or ward, under direction of his guard- ian, is a proper one, and such administrator is entitled to credit in his report for any reasonable sum of money so expended. ^^ Where it appears that an executor or administrator has acted in conformity to the statute, it will be presumed, until the con- trary is shown, that he did his duty; and where the heirs object to a credit claimed by the administrator for a debt of the estate " Woerner Am. Law Admin., § 504. ™ Powell v. North, 3 Ind. 392, 56 •^ Burns' R. S. 1908, § 2921. Am. Dec. 513n. 32— Pro. Law. 498 INDIANA PROBATE LAW. § 3IO paid by him. the claim having been verified and properly filed, and its payment receipted for, the bnrden is upon them to show that such claim was improperly and fraudulently allowed and paid.'^ The administrator or executor is a competent witness to small charges, but large items must be verified by vouchers or ex- traneous proof.^® He is entitled to credit for all proper payments made by him on behalf of the estate, and if any such payment has been made out of his own funds it should be allowed him in his account.^" A payment, in all other respects a proper one to be made, should not be disallowed because paid prematurely/" Improper or dishonest payments should not be allowed ; but payments made in good faith under an invalid appointment, which was afterward revoked, should be credited to the person making them.^^ The creditor's receipt is sufficient to entitle an executor or ad- ministrator to a credit for the payment. **- An item rejected in one account may afterward be allowed.*' And a voucher filed with a report may be impeached by showing that it does not represent a bona fide payment.*** § 310. When the court may order final settlement. — If upon such accounting and approval it shall appear to the court that the estate is solvent, and that there are claims allowed against the estate remaining unpaid, the court shall order the moneys remaining in the hands of the executor or administrator to be applied to the payment of expenses of administration and of such claims. If the moneys on hand be sufficient therefor, and there remain no claims pending for allowance, and no debts "Stout V. Morgan, 6 Ind. 369. V.) 339; Burke v. Coolidge, 35 Ark. " Succession of Foulkes, 12 La. 180. Ann. 537 ; Romig's Appeal, 84 Pa. St. " Henderson v. Simmons, 33 Ala. 235 ; Hall v. Hall, 1 Mass. 101 ; Dav- 291. 70 Am. Dec. 590. enport v. Lawrence, 19 Te.x. 317. *^ Collins v. Tilton. 58 Ind. 374; ™ Woods V. Ridley, 27 Miss. 119; Walls v. Walker, 37 Cal. 424, 99 Am. Watson V. McClanahan, 13 Ala. 57. Dec. 290n. ^Johnson v. Corbett. 11 Paige (X. ^* Harrell v. Seal. 121 Ind. 193, 22 Y.) 265. N. E. 983; Butler's Estate, 16 N. Y. "" Bloomer v. Bloomer, 2 Bradf. (X. S. 103. § 3IO ACCOUNTING AND SETTLEMENT. 499 due the estate remaining for collection, the court shall enter an order for the final settlement of the estate, payment of claims un- paid, and distribution of the residue to the heirs and legatees of the decedent. If, in such case, the moneys on hand be not suf- ficient to pay the expenses of administration and claims allowed in full, and the estate be solvent, and there remain, in the hands of the executor or administrator, property or choses in action belonging to the estates and not converted into money, the moneys on hand shall, under the order of the court, be applied pro rata on the expenses and claims, according to the order of classes hereinbefore prescribed, and the estate shall be continued for further settlement, unless the amount necessary to discharge the liabilities of the estate be advanced by the heirs or legatees of the estate.*'' In the interest of a prompt settlement of the estates of dece- dents it is essential that power should rest in the probate courts to compel final settlement of such estates; and while such power exists in our courts, yet no final settlement can be made until the estate has been fully administered, and it would be an abuse of the power of the court to require an executor or administrator to make final settlement before he has had time to collect and re- duce the assets of the estate to money and to pay and discharge its debts and liabilities.*" But even where the executor or admin- istrator has collected the assets of the estate and has converted them into money, no valid settlement can be made before the expiration of one year from the issuing of letters and notice of appointment." After the expiration of the time for filing claims, however, the court can compel a final settlement of the estate if no special circumstances intervene rendering a final settlement impracticable at that time.** " Burns' R. S. 1908, § 2914. 24 X. E. 253 ; Scott v. West, 63 Wis. ^ Dufour V. Dufour, 28 Ind. 421 ; 529, 24 X. W. 161 ; 25 N. W. 18. Allison V. Abrams, 40 Miss. 747; '* Austin v. Jordan, 35 Ala. 642; Blanchard v. Williamson. 70 111. 647; Branch v. Hanrick, 70 Tex. 731, 8 S. Crossan v. McCrary, Zl Iowa 684. W. 539. ^' Shirley v. Thompson, 123 Ind. 454, 500 IXDIAXA PROBATE LAW. S 311 § 311. Allowance of compensation for services. — The court may make allowance to such executor or administrator, when he makes his report in partial or final settlement, for his services as such executor or administrator, as the court may think just and reasonable, including expenses in the discharge of his duties, and reasonable attorney's fees, where he employs an attorney in the management of such estate ; but in no case shall such attor- ney's fees be included in the allowance to such executor or ad- ministrator for his personal services.*" The method of compensating an executor or administrator for his sei'vices in the settlement of his decedent's estate is set out in these statutes, and such allowance, by way of compensation for services, expenses, etc., is made by the court without notice to tlie heirs or legatees; and while the law contemplates that an execu- tor or administrator shall receive a just compensation or allow- ance, and nothing more, for his serviced in the settlement of his decedent's estate, yet he may not, however, fix the value of his services, or determine for himself the amount of his allowance. He must present his claim for his services in the form prescribed by the statute to the court having jurisdiction of his decedent's estate, and upon such claim the court may allow him a just com- pensation for such services.""^ The amount of such allowance is left to the discretion of the court in which the estate is pending, and the exercise of such dis- cretion will not be disturbed by an appeal unless it clearly appears from the record that the sum allowed the executor or adminis- trator is wholly insufficient.**^ "^ Burns' R. S. 1908, § 2918. In mak- lowance. Watkins v. Romine, 106 ing allowances to executors and ad- Ind. 378, 7 N. E. 193. ministrators for services, the nature ""Collins v. Tilton, 58 Ind. 374; of such service, peculiar qualification Watkins v. Romine, 106 Ind. 378, 7 X. of the trustee for the duties per- E. 193. formed, and difficulties attending the "^ Ex parte Hodge, 6 Ind. App. 487, settlement of the estate, should be 33 N. E. 980. An allowance to an ex- considered. Pollard V. Barkley, 117 ccutor or administrator for services Ind. 40, 17 N. E. 294. An allowance must be made by the court. If such for services is not conclusive unless an allowance is made in approving an the court was in possession of all the account current it is not binding on facts necessary to make a proper al- the heirs, and may be contested on the § 311 ACCOUNTING AND SETTLEMENT. 501 And one who procures an exorbitant allowance for services cannot insist that the order making such allowance is conclusive, unless he shows that such order was made with a full and ac- curate knowledge of all the facts.^^ Traveling expenses, actually incurred by an executor or admin- istrator, may be allowed ; but he should not be allowed more for his services by reason of the fact that he lived at a distance from the place where his duties had to be performed."^ All expenses for which an allowance is asked must have been incurred in a bona fide prosecution of the business of the estate.'-** But expenses which have been incurred through the negligence of the executor or administrator should not be allowed."^ As a rule, no allowance should be made to an executor or ad- ministrator for his time, trouble and expense in attending the funeral of his decedent."^ hearing of the linal scltlcment report. Collins V. Tilton, 58 Ind. 374. An ex- ecutor or administrator residing a long distance from the place of hold- ing court cannot claim extra compen- sation on that account. Watkins v. Romine, 106 Ind. 378, 7 N. E. 193. "= Watkins v. Romine, 106 Ind. 378, 7 X. E. 193; Collins v. Tilton, 58 Ind. 374. Where an administrator made a report and asked to be discharged from his administratorship, and made a charge for services in the sum of two hundred and fifty dollars, and the court discharged such administrator and allowed him thirty dollars for services rendered, on appeal from such allowance, when the record does not show to the contrary, it will be pre- sumed that the court heard evidence from which it reached the conclusion that the services were worth only thirty dollars, and whether or not the amount allowed was such as he was entitled to receive, cannot be reached by a motion to modifj'. The amount to be allowed an administrator for his services is discretionary with the court, and the appellate court will not question the same, unless the amount appears wholly insufficient. Ex parte Hodge, 6 Ind. App. 487, 33 N. E. 980. "'Dey V. Codman, 39 N. J. Eq. 258; Watkins v. Romine, 106 Ind. 378, 7 N. E. 193. "' Haggard v. Mayfield, 5 Hayw. (N. Car.) 121. An administrator is not entitled to interest on his claim for services, nor to expenses of appeal, during the pendency of the action and appeal, where the case is one to re- move the administrator and compel an accounting. McClelland v. Bristow, 9 Ind. App. 543, 35 N. E. 197. "'Brackett v. Tillotson, 4 N. H.208; Robbins v. Wolcott, 27 Conn. 234; Jennison v. Hapgood, 10 Pick. (Mass.) 77. Property specially bequeathed is not liable for expenses of administra- tion until the other property is ex- hausted. Corya v. Corya, 119 Ind. 593, 22 N. E. 3. ■* Lund V. Lund, 41 N. H. 355. But see Mann v. Lawrence, 3 Bradf. (N. 502 INDIANA PROBATE LAW. § 311 If a person, as a consideration for his appointment as adminis- trator, agrees to ser\'e the estate without compensation, such agreement will be upheld as valid and binding and he cannot afterward claim pay for such services." Where the collection of the assets of the estate, or any part of them, involves peculiar or extraordinary difficulty, an executor or administrator may employ an agent for the purpose of such collection, and the court should allow him a reasonable compen- sation for such purpose."' The employment of agents by an executor or administrator is justifiable when the service to be performed requires special skill, and is not within the line of his ordinary duty."** The services of brokers and auctioneers are within this principle.^ Also the expenses of a detective employed to establish a will." It would also seem that the expense of em- ploying a bailiff where a good business man would employ such an agent in his own affairs may be allowed.^ An executor or administrator is not personally liable for costs in a suit brought by him to recover property of the estate, but if by error judgment is so rendered against him instead of against the estate he will be bound for the payment of the costs unless the proper steps are taken to correct such judgment.* The necessary and reasonable expenses of an executor in an unsuc- cessful attempt, made by him in good faith, to resist a contest of the will of his testator, should be allowed against the estate of the decedent and not charged personally against such execu- tor.^ Y.) 424; Wall's Appeal, 38 Pa. St. * State, ex rel., v. Ritter, 20 Ind. 406. 464. One who has no interest in the estate "Polk V. Johnson, 35 Ind. App. 478, as creditor or otherwise cannot object 65 N. E. 536. to the charges made by the adminis- "* Kennedy's Appeal, 4 Pa. St. 149. trator on account of services rendered "^ Henderson v. Simmons, 33 Ala. by himself and his counsel. Schrichte 291, 70 Am. Dec. 590; Dey v. Codman, v. Stites, 127 Ind. 472, 26 N. E. 77, .39 N. J. Eq. 258. 1009. ' Pinckard v. Pinckard, 24 Ala. 250. ' Bratney v. Curry, 33 Ind. 399 ; ^ In re Lewis, 35 N. J. Eq. 99. Perrine v. Applegate, 14 N. J. Eq. 531 ; ' McWhorter v. Benson, 1 Hopk. Compton v. Barnes, 4 Gill. (Md.) 55, (N. Y.) 32; Wilkinson v. Wilkinson, 45 Am. Dec. 115; Hazard v. Engs, 14 .2 Sim. & Stu. 237. R. I. 5. Costs made in prosecuting §311 ACCOUNTING AND SETTLEMENT. 503 But neither costs nor counsel fees will be allowed unless the executor or administrator has actually paid them.*' An administrator may be allowed reasonable compensation for services and expenses in rectifying mistakes made without his fault.' And expenses incurred in resisting claims honestly be- lieved upon reasonable grounds to be unjust, should be allowed an executor or administrator; but not where such expense was incurred owing to the negligence or misconduct of the executor or administrator.** In many of the states the rate of compensation to an executor or administrator is fixed by allowing him a commission upon the gross amount of property which comes to his hand; and the rate of commission is often fixed by statute.'' But in this state, as has been shown, the rate of compensation, the amount to be allowed an executor or administrator for services, etc., lies entirely within the discretion of the court. ^° To justify a court in refusing any compensation to an execu- tor or administrator on the ground of his misconduct, such mis- conduct must have been wilful, or his negligence so gross as to result in actual loss to the estate." suits in favor of, or defending suits Ammon's Appeal, 31 Pa. St. 311; against, an estate, are to be allowed as Blake v. Pegram, 109 Mass. 541 ; Cam- e.xpenses of administration, but costs eron v. Cameron, 15 Wis. 1, 82 Am. adjudged in favor of claimants are Dec. 652; Effinger v. Richards, 35 paid in the same order as their claims Miss. 540; Wendell v. French, 19 N. are paid. Taylor v. Wright, 93 Ind. H. 205 ; Price's Estate, 81 Pa. St. 263. 121. Where an executor is also a ' Bendall v. Bendall, 24 Ala. 295, 60 beneficiary under the v^ill, and he em- Am. Dec. 469; Morgan v. Hannas, 49 ploys counsel to uphold the will N. Y. 667; Currier's Appeal, 79 Pa. against a contest, it is proper for the St. 230 ; Barrell v. Joy, 16 Mass. 221 ; court to apportion the counsel fees as Kee v. Kee, 2 Gratt. (Va.) 116; Smart between executor individually and of- v. Fisher, 7 Mo. 580; First Nat. Bank ficially. Roll v. Mason, 9 Ind. App. v. Owen, 23 Iowa, 185; EUig v. Na- 651, il X. E. 298. glee, 9 Cal. 683; Blauvelt v. Acker- " Succession of Holbert, 3 La. Ann. man, 23 N. J. Eq. 495 ; Hough v. Har- 436; Hoke v. Hoke, 12 W. Va. 427; vey, 71 111. 72; Biscoe v. State, 23 Ark. Thacher v. Dunham, 5 Gray (Mass.) 592. 26 ; Modawell v. Holmes, 40 Ala. 391. '" Collins v. Tilton, 58 Ind. 374. ^ Bartlett v. Fitz, 59 N. H. 502. " Walker v. Walker, 9 Wall. (U. « Pearson v. Darrington, 32 Ala. S.) 743, 19 L. ed. 814; Grant v. Reese, 227 ; Holmes v. Holmes, 28 Vt. 765 ; 94 N. Car. 720 ; Eppinger v. Canepa, 504 INDIANA PROBATE LAW. § 311 But no compensation should be allowed to one who has ren- dered no serv'ice to the estate/^ But a mere mistake in judgment should not deprive him of compensation." Nor will an unfaithful administration deprive an executor or administrator of his right to compensation for his services so far as such services have been beneficial to the estate.^* Payment should be made for services actually rendered without anticipat- ing what may be done in the future.^'' And where co-executors or co-administrators have been willing to do, or have done what- ever was required, the compensation allowed should be divided between them/** But if the work done by them has been unequal, the compensation should be apportioned according to work and trouble. ^'^ The court is not bound by any unbending rule in making an al- lowance to an executor or administrator as compensation for his services to the estate, but will consider the nature of the estate, the difficulties attending the recovery of the assets, and the settle- ment of the estate; the peculiar qualifications of the representa- tive, the advantage to the estate from such qualifications, and such other facts and circumstances as will enable it to do justice as between the estate and such representative/® One who has no interest in the estate has no right to object to the charges made by an administrator or executor for his serv- ices/'' An administrator de bonis non is entitled to compensation for his services, notwithstanding the former administrator had re- ceived an allowance.^'' 20 Fla. 262; Lyon v. Foscue, 60 Ala. "= Squier v. Squier, 30 N. J.Eq.627; 468; Blake v. Pegram, 109 Mass. 541; Pomeroy v. Mills, 40 N. J. Eq. 517, 4 Clauser's Estate, 84 Pa. St. 51. Atl. 768. ""In re Manice, 31 Hun (N. Y.) "Hill v. Nelson, 1 Dem. (X. Y.) 119. 357; Waddill v. Martin"; 3 Ired. Eq. "Myer's Appeal, 62 Pa. St. 104. (N. Car.) 562. "Jennison v. Hapgood. 10 Pick. '' Pollard v. Barkley, 117 Ind. 40, 17 (Mass.) 11; Tiner v. Christian, 27 N. E. 294. Ark. 306; Belknap v. Belknap, 5 Allen '' Schrichte v. Stites, 127 Ind. 472, (Mass.) 468. 26 N. E. V, 1009. '^ Walker's Estate, 9 S. & R. (Pa.) =" Cherry v. Jarratt, 25 Miss. 221; 223. Moore v. Randolph, 70 Ala. 575. 312 ACCOUNTING AND SETTLEMENT. j^O^ The amount allowed an executor or administrator is to be credited on his account as so much paid out by him, and any one whose interest is affected by such allowance may object to it, by exceptions to the report.^^ The amount of labor expended does not furnish the sole cri- terion for the rate of compensation. The value of the services rendered, and the promptness of attention given, should also be considered. It is not the policy of the law to allow liberal com- missions to executors and administrators for settling estates and at the same time allow payments to attorneys for doing the busi- ness such officers should do. But the frequent employment by them of attorneys to aid and counsel in the transaction of the business of the estate is no reason for not allowing their claim for sen'ices."" § 312. Compensation allowed by will. — By the common law neither executors nor administrators were entitled to com- pensation for their services as such, but a more enlightened policy now generally prevails, and not only are such officers allowed reasonable compensation for their labor, time, and expenses, but such compensation is made a first charge against the estate in their hands, and is to be paid, as part of the expenses of admin- istration, before debts, legacies, or distributive shares. A testator may provide in his will the compensation to be allowed his executor for his services, and the executor will be bound thereby unless he renounces his claim thereto. The statute reads as follows: When provision is made by a will for com- pensation to the executor thereof, the same shall be deemed a full satisfaction for his services in lieu of the aforesaid com- mission and extra allowance, or his share thereof, unless he shall, by a written instrument filed in the court issuing his let- ters, renounce all claim to such compensation given by the will.'^ But where the testator himself stipulates in his will what com- ^ Schrichte v. Stites, 127 Ind. 472, Trammel v. Philleo, 33 Tex. 395 ; Es- 26 N E 77 1009; Hosack v. Rogers, tate of Lancaster, 14 Phila. (Pa.) 237. 9 Paige (n'. Y.) 461. =^ Burns' R. S. 1908, § 2919. ^Powell V. Burrus, 35 Miss. 605; ^06 INDIANA PROBATE LAW. § 3^- pensation shall be paid his executor for his senices under the will, and the executor, knowing this, accepts the trust he will be bound.-* If the will leaves such compensation to be fixed by the execu- tor himself, it is within the discretion of the cuurt to allow him a reasonable compensation.-^ The executor may renounce the compensation given him by the will and rely wholly upon the discretion of the court as to what his services are worth. Such election must be filed in writing, and while no time is fixed by the statute within which the election shall be made, it must be exercised promptly or the riirht will be lost bv his laches.-" A mere bequest to an executor in the absence of anything in the will showing it to be a specific compensation for his services, is not sufficient to deprive him of a reasonable compensation.-' Nor will the naming of any executor in a will operate as a dis- charge of any just claim which the testator had against such executor, but the same shall be settled according to law.-"* An agreement to serve without compensation, or to serve for a fixed compensation, is valid and binding after acceptance of the trust. -^ It would seem that where, by the terms of the will, the func- '* Ross V. Conwell, 7 Ind. App. 375, of such compensation is, by the stipu- 34 N. E. 752 ; Biscoe v. State, 23 Ark. lation of the contract, left to the arbi- 592; In re Hopkins, 32 Hun (N. Y.) trary determination of one of the par- 618. In Ross v. Conwell the court ties, or to the agents or officers of saj^s: 'The rule just announced rests such parties, if the same be a corpora- upon the principle that where the par- tion, it is in the nature of a contract ties to an agreement have fixed the not to resort to a judicial forum for a compensation among themselves, the settlement of the controversy, and courts will not interpose their judg- such contracts are not binding in law." ment as a substitute for that of the See People's, etc., Soc. v. Werner, 6 parties, even though such considera- Ind. App. 614, 34 N. E. 105. tion be of indeterminate value, but "^ .\rthur v. Nelson, 1 Dem. (N. Y.) will give full effect to the agreement 337. if it be free from fraud or undue in- "' In re Mason, 98 X. Y. 527 ; Oden fluence." See Shover v. Myrick, 4 v. Windley, 2 Jones Eq. (N. Car.) Ind. App. 7, 30 N. E. 207. 440. ^ Ross v. Conwell, 7 Ind. App. 375, =* Burns' R. S. 1908, § 3128. 34 N. E. 752. "But when the amount ^ Estate of Davis, 65 Cal. 309, 4 § ;^1^ ACCOUNTING AND SETTLEMENT. 5O7 tions of an executor and of a trustee co-exist, and the same per- son is called on to perform two distinct kinds of service for each of which the law awards compensation, he should receive com- pensation for both. "The court deals with them in the matter of compensation in such cases precisely as if the two trusts were in different hands."^'' So where under a will the duties of an executor as such are to be first performed and then he is required to assume duties as a trustee, he will be entitled to compensation in both capacities. ^'^ But where the functions of executor and that of trustee are so blended that they are inseparable then but one compensation should be allowed.^' But in every instance the intention of the testator as gathered from the will is decisive and must be given effect." § 313. Allowance for attorney fees. — It is provided by stat- ute that no allowance shall be made to any executor or adminis- trator for any services rendered by him as attorney in the settle- ment of the estate, but he may be allowed for the reasonable fees of an attorney rendering necessary services in such settlement.^* An executor or administrator has a right to employ an attor- ney in the management of the estate, and the estate will be held liable for services rendered by such attorney."^ And if an execu- tor or administrator refuse to pay an attorney employed by him Pac. 22; Bovvker v. Pierce, 130 Mass. ministrator cannot charge the estate 262 ; Ross v. Conwell, 7 Ind. App. 375, for services rendered it by himself as 34 X. E. 752. attorney. Taylor v. Wright, 93 Ind. ^ Baker v. Johnston, 39 N. J. Eq. 121; Pollard v. Barkley, 117 Ind. 40, 493; Laytin v. Davidson, 95 N. Y. 263. 17 X. E. 294. "In Re Willets, 112 N. Y. 289, 19 "Lewis v. Reed, 11 Ind. 239; Xave N. E. 690; McAlpine v. Potter, 126 v. Salmon, 51 Ind. 159. The court, N. Y. 285, 27 X. E. 475. however, is not bound by any con- ^ Johnson v. Lawrence, 95 N. Y. tract made between an administrator 154 ; Brush v. Young, 28 X. J. L. 237 ; and an attorney as to the amount to Everson v. Pitney, 40 N. J. Eq. 539, 5 be paid for services, unless such con- Atl. 95. tract has been specifically authorized " Shippen v. Bard, 42 Pa. St. 461 ; by the court. The matter of such al- Lansing v. Lansing, 45 Barb. (N. Y.) lowance is largely in vhe discretion of 182. the court. Richey v. Cleet, 46 Ind. " Burns' R. S. 1908, § 2920. An ad- App. 326, 92 X. E. 175. -o8 INDIANA PROBATE LAW. § 313 in the interest of the estate, the attorney may, as other claim- ants, file his account for services rendered, against the estate.'* In one case the court says: "Under a fair and reasonable con- struction of this provision, it seems to us that an executor or administrator may employ an attorney in the management of his decedent's estate; that, in the absence of any special agreement to the contrary, such executor or administrator will be person- ally liable to such attorney for his reasonable fees; that on the payment of such reasonable fees, such executor or administrator shall be allowed therefor by the proper court; and that, in the absence of any special contract by the attorney, that he will look to the decedent's estate for his pay. As his reasonable fees are made a proper charge against such estate, such attorney may, as he may elect, enforce the collection of his reasonable fees from such executor or administrator in his personal capacity ; or he may present his claim therefor to the proper court for allowance as a proper charge against such estate. The contracts of an executor or administrator cannot be regarded as, in any sense, the con- tracts of the decedent; they are necessarily the personal contracts of the executor or administrator, and he must be held personally liable therefor when he does not stipulate for exemption from such liability."" The compensation of an executor or administrator should not be cut down in order that an attorney properly employed, may be fairly compensated, even where part of the services rendered by the attorney might, perhaps, have been performed by such executor or adrninistrator.^** Where the executor or administrator pays the charges of an attorney employed by him in the interest of the estate, it is the '"Scott V. Dailey, 89 Ind. 477; Bott ^lason, 9 Ind. App. 651, Zl N. E. 298. V. Barr, 95 Ind. 243. '' Estate of Lancaster, 14 Phila. "^ Long V. Rodman, 58 Ind. 58. (Pa.) 237. The court may allow rea- Where counsel employed by an exec- sonable attorney's fees to an executor utor to sustain a will against a con- where he employs counsel in the man- test appear also for the beneficiaries, agement of the estate, and such al- and render service for them at their lowance may also be made after the request, they may recover therefor as will has been set aside. Roll v. upon an implied promise. Roll v. Mason, 9 Ind. App. 651, Zl N. E. 298. §313 ACCOUNTING AND SETTLEMENT. 509 duty of the proper court, under this statute, to make to such executor or administrator an allowance as compensation there- for. But before the estate can be made liable for the charges of an attorney for services performed in its management, he must show an employment for that purpose by the executor or admin- istrator of the estate. Neither the legatees nor heirs have power, by contract with an attorney, to bind an estate represented by an executor or administrator for the payment of attorney fees, however beneficial the services enjoyed may be for the estate. In such case the attorney can only look to his employers for com- pensation.^" An executor or administrator cannot act as such and also as attorney for the estate and be allowed compensation for his services in both capacities. Every claim filed against an estate must be rejected by the executor or administrator before it can become the subject of litigation. The inducement to reject claims, without regard to their merit, would be greatly increased if the executor or administrator might receive or share in attor- ney's fees in resisting their payment. Under the statute no com- pensation whatever can be paid an executor or administrator for services as attorney in an estate represented by him. This statute is simply declaratory of the common law. The fact that an executor or administrator had a partner who assisted in per- forming legal services for the estate can make no difference. It would be an easy method of evading the law to hold that an executor or administrator, while he may not be compensated out of the estate for his individual legal services, can share fees with a partner for such services rendered the estate by a firm of which such executor or administrator is a member.'*'^ '"Scott V. Dailev, 89 Ind. 477; on Trusts, § 432; Pollard v. Barkley, Stuttmeister's Estate, 75 Cal. 346, 17 117 Ind. 40, 17 N. E. 294; Miles v. Pac. 223. Executors and administra- DeWolf, 8 Ind. App. 153, 34 N. E. tors are personally liable for the serv- 114. An estate is liable for the serv- ices of attorneys employed by them in ices of an attorney employed by an the absence of a contrary agreement, executor or administrator in and Long V. Rodman, 58 Ind. 58. about the settlement of the estate. '' Taylor v. Wright, 93 Ind. 121; Long v. Rodman, 58 Ind. 58; Scott v. Hough V. Harvey, 71 111. 72 ; 1 Perry Dailev, 89 Ind. 477. 5IO INDIANA PKODATI-: LAW. § 314 In the absence of an express agreement the executor or admin- istrator will be personally liable for attorney fees in the first in- stance.*" And where he has not paid the fees the court may, in its discretion, allow such fees directly to the attorneys.^- But fees should not be allowed for more attorneys than were actu- ally needed.^"' Nor should he be allowed fees for attorneys whose employment was made necessary through his own fault or negligence,^* nor for services rendered in resisting a proper suit brought against himself,*^ nor for services which could and ought to have been rendered by the administrator himself in person.^" An attorney who has rendered service to one named in a will as executor before his appointment and qualification as such executor, is entitled to recover from the estate a reasonable fee for such service.^' It has been decided that the selection of an attorney for his estate by a testator in his will to advise and assist the executor in winding up the business of the estate is not binding upon the executor, and that he may, if he wishes, employ other counsel and pay him out of tlie estate.'"" § 314. Settlement on resignation, removal, etc. — W here an executor or administrator resigns, or is removed, he may be re- quired to present to the court having jurisdiction of the estate, a full and complete report of his accounts with the estate, which "Alygatt V. Willcox, 1 Lans. (N. "O'Reilly v. Meyer, 4 Dem. (N, Y.) 55. An estate is not liable for Y.) 161; Aldridge v. McClelland, 36 the services of an attorney employed X. J. Eq. 288; Fagan v. Fagan, 15 by legatees. Scott v. Dailey, 89 Ind. Ala. 335. 477. «Ex Parte Allen, 89 111. 474; Lilly *"■ Hoke V. Hoke, 12 W. Va. 427. An v. Griffin, 71 Ga. 535. executor is entitled to an allowance *"'■ Hurlbut v. Hutton, 44 X. J. Eq. for attorney's fees although the will 302. 15 Atl. 417. is set aside and an administrator ap- ■*' Baker v. Cauthorn, 23 Ind. App. pointed. Nave v. Salmon, 51 Ind. 159. 611, 55 N. E. 963, 77 Am. St. 443. " Crowder v. Shackelford, 35 Miss. " Young v. Alexander, 16 Lea 321; Liddel v. McVickar, 11 X. J. L. (Tenn.) 108; In re Ogier's Estate, 44, 19 Am. Dec. 369; Smyley v. Reese, 101 Cal. 381. 35 Fac. 900, 40 Am. St. 53 Ala. 89. 25 Am. Rep. 598; Estate 61. of Nicholson, 1 Nev. 518, § 314 ACCOUNTING AND SETTLEMENT. 5II report so far as he is concerned is a final report. In case of the death of an executor or administrator such account should be filed by his personal representative, or by the sureties upon his bond.^" Such executor or administrator should never be permitted to resign his trust without, after due notice to interested parties,- fully accounting for all the property of the estate received by him, and paying over any balance found in his hands to the proper parties under the order of the court.''" The settlement made by an executor or administrator at the time of his resignation which does not fully close the business of the estate in his hands, and which yet leaves something to be done by a successor is not a final settlement of the estate within the meaning of the statute. Where he resigns before his trust is fully performed, the settlement with him only takes himself out of court and not the estote.^^ When a report and resignation are tendered by an executor or administrator, and the report is approved and the resignation accepted, such report and resignation are final in so far as to be binding upon all parties interested in the estate upon all such matters as are properly embraced in the report and the order of the court approving the same." When an executor or administrator resigns or is removed, interested parties have the right to object to his final account, as they have to his other accounts.^^ And after the resignation, in so far as any unsettled claim between himself and the estate is concerned, his relation to the estate differs in no respect from those of other creditors or debtors.^* The settlement of the accounts of an executor or administrator '"Curtis V. Bailey, 1 Pick. (Mass.) ''Parsons v. Milford, 67 Ind. 489; 198. Lang v. State, 67 Ind. 577. '"Thayer V. Homer, 11 Met. (Mass.) ''State v. Peckham, 136 Ind. 198, 104: Morgan v. Dodge, 44 N. H. 255, 36 N. E. 28; Green v. Brown, 8 Ind 82 Am. Dec. 213; Haynes v. Meeks, App. 110. 33 N. E. 979. 10 Cal. 110, 70 .-Xm. Dec. 703 n ; Carter " Poulson v. National Bank, 33 N. V. Anderson, 4 Ga. 516; Waller v. J. Eq. 618. Ray, 48 Ala. 468; Ingram v. May- "'Ingram v. :Maynard, 6 Tex. 130. nard. 6 Te.x. 130. 512 INDJAXA PROBATE LAW. § 3^5 who has died, been removed, or resigned, is in the nature of a transfer of the balance found due to his successor. And any order based upon such account should provide in what way such balance must be paid over." The order of court in accepting and passing upon the report and resignation of an administrator, cannot be collaterally at- tacked;'" but it does not preclude a suit upon his bond.'*' The probate court has power to compel a full accounting and settlement of tlie administration down to the time of the death, removal or resignation of the executor or administrator.''- In such accounting the same rules apply as govern the settling of the accounts of executors and administrators generally, and it is final and conclusive as to the rights and liabilities of the estate and the deceased or removed administrator. The administra- tion of the estate is not affected by such settlement, but proceeds in all respects as though no change in its representation had taken place.'''^ An administrator's report showing a complete ac- counting of all receipts and disbursements and that no funds re- main in his hands, and accompanied by his resignation is not a final report within the meaning of the statute, but leaves the estate open for further administration."*' § 315. The account in final settlement. — The administra- tion of an estate implies a complete disposition of it by the execu- tor or administrator, not only the collection and reduction of the assets to money, but the payment of the money to whomsoever is legally entitled whether it be the creditors, legatees, or dis- tributees. And until an executor or administrator can show that he has made a lawful disposition of all the assets of the estate which have come to his knowledge, or with which he has been '^ Green v. Brown, 8 Ind. App. 110, Roberts v. Spencer, 112 Ind. 85, 13 X. 33 N. E. 979; State v. Peckham, 136 E. 129. Ind. 198. 36 N. E. 28 ; Allison v. '' Sanders v. Loy, 61 Ind. 298. Abrams, 40 Miss. 747 ; Price v. Sim- '* Brooks v. Hasten, 69 Mo. 58 ; mons, 13 Ala. 749. State v. Gray, 106 Mo. 526, 17 S. W. =' Lang V. State, 67 Ind. 577. 500. =' Parsons v. Milford, 67 Ind. 489; ^ Green v. Brown, 146 Ind. 1. 44 N. E. 805. ^3^5 ACCOUNTING AND SETTLEMENT. qi DM properly charged, the estate should not be finally settled and such officer discharged. The statute provides that after the debts and legacies of an estate, and expenses of administration have been paid, and all assets of the estate duly accounted for, and all claims in favor of the estate disposed of according to law, the executor or adminis- trator shall pay into court the moneys, if any, remaining in his hands, or distribute the same under the order of the court to the persons entitled thereto, and be discharged from the further administration of the estate, and the estate shall be by the court declared finally settled. And no final settlement shall be re- voked or re-opened after the close of the term in which the same shall have been made except as hereinafter provided.®^ The final settlement contemplated by this statute has reference to the ultimate completion of the business of the trust created by the issuance of letters testamentary or of administration, and to the final order based upon such completion of the business of the trust, which takes the estate out of court and not to the last re- port of an outgoing executor or administrator, where he resigns before his trust has been fully performed, thus taking himself only, and not the estate, out of court.^- The term final settle- ment means not merely the ascertainment of the final balance of cash in the hands of an executor or administrator, but a payment of that balance also, either into court or to the parties entitled thereto under order of the court, so that nothing shall remain to " Burns' R. S. 1908, § 2924. may authorize and direct, and said •'-"Dufour V. Dufour, 28 Ind. 421; * * * [A.] now tenders his resig- ./^ngevine v. Ward, 66 Ind. 460; Par- nation as such administrator, which sons V. Milford, 67 Ind. 489. Where is accepted, and said administrator an administrator filed what purports finally discharged," the provisions of to be his final report, to which excep- the order continuing the estate for tions were filed by claimants, but the certain purposes, and accepting the exceptions are subsequently with- resignation of the administrator, are drawn, with right to enforce and col- wholly inconsistent with the idea of lect their claims in the future, and the final settlement, and an adminis- order concludes as follows : "And trator de bonis non may be appointed, the estate is continued as to matters Green v. Brown, 8 Ind. App. 110, 33 embraced in the exceptions only for X. E. 979. further administration as the court 33 — Pro. L.aw. 514 INDIANA PROBATE LAW. ^3'^ be (lone by sucb executor or administrator in liis fiduciary capacity, thus permitting liim to be fully discharged fruni his trust, as having completely performed them."^ There can be no final settlement of an estate within the mean- ing of the statute, where no assets have been discovered on which to administer."* The final settlement, however, does not preclude a further inquiry in regard to assets of the estate in the hands of the ex- ecutor or administrator which have n(jt been accounted for or passed upon."'" And while the presumption is very strong that all the property of the estate has been accounted for, yet such final settlement and the decree of the court thereon, is not con- clusive as to property accidentally or fraudulently withheld from the account. For a court cannot bind the parties by deciding what was not before it."" § 316. The time when final account shall be filed. — Lnder the statute, there can be no final settlement of an estate until after the expiration of one year from the issuance of letters testamentary or of administration thereon and notice thereof." But executors and administrators are required, at the end of one year from their appointment and notice thereof, or as soon thereafter as may be, to file in the court issuing their letters a true and complete account exhibiting the exact condition of the '''Dnfour v. Dufour, 28 Ind. 421; "' Langsdale v. Woollen, 120 Ind. Johnson V. Hedrick, 33 Ind. 129, 5 78. 21 N. E. 541. Am. Rep. 191. The phrase "'final set- " :Mc-'-\.fee v. Phillips, 25 Ohio St. tlement of the estate," as used in the 374; Brown v. Brown, 53 Barb. ( X. last sentence of § 2828, Burns' R. S. Y.) 217: Flanders v. Lane, 54 N. H. 1908, means the filing of the account 390. » of the executor or administrator for '"Griffith v. Godey, 113 U. S. 89, 28 final settlement, and claims not filed L. ed. 934, 5 Sup. Ct. 383 ; In re Sout- thirty days before such filing at a ter, 105 X. Y. 514, 12 X. E. 34; Cros- time and in the manner authorized by san v. AlcCrary, 37 Iowa 684; Smith law will be barred. Roberts v. Spen- v. Lambert, 30 Me. 137. cer, 112 Ind. 81, 13 X. E. 127; Roberts "' Fleece v. Jones, 71 Ind. 340; Shir- V. Spencer, 112 Ind. 85, 13 X. E. 129; ley v. Thompson, 123 Ind. 454, 24 X. Schrichte v. Stites, 127 Ind. 472, 26 E. 253. X. E. 77, 1009: Jackson v. Butts, 5 Ind. App. 384, 32 X. E. 96. § 317 ACCOUNTING AND SETTLEMENT. 515 estate."- If the report then filed is not in final settlement, it is the duty of the executor or administrator to make a final settle- ment within six months thereafter, unless otherwise ordered by the court for good cause shown. After one year from giving notice of appointment has expired, the court may, in its discre- tion, and for cause shown, peremptorily order an executor or ad- ministrator to make final settlement, and may enforce compli- ance by attachment;'"'" and where an executor or administrator has collected all the assets, and paid them out on claims allowed against the estate, it is his duty under the law to make a final settlement of such estate after the lapse of one year from giving notice of his appointment.^" Under the statute a creditor has one year in which to file his claim. Until that time has elapsed the executor or administrator cannot cut off that right by making a premature settlement of the estate.^ ^ § 317. No final settlement with claim pending, — An execu- tor or administrator cannot make a final settlement of his dece- dent's estate while a claim is pending against such estate, un- allowed or undisposed of, and if such settlement should be made through the mistake or fraud of the executor or administrator, the creditor, whose claim is thus left unpaid, may, by taking the proper legal steps, have such settlement reopened or set aside, unless provision for its payment has been made according to this statute.'- If the claim was properly pending, there would be sucli illegality in the final settlement as would, if properly pre- sented, justify and require the setting aside of the final settle- ment ; but that illegality will not be sufficient to render the order of the court approving such final settlement absolutely void, and so long as the settlement is not set aside in some proper manner, it is valid and conclusive." "".■^nte, §303. "Tilson v. Hoosier etc. Fruit Co., ""Ante, § 307. 43 Ind. App. 684, 88 N. E. 524; '"Roberts v. Spencer, 112 Ind. 81, Heaton v. Knowlton, 65 Ind. 255; 13 X. E. 127. Reed v. Reed, 44 Ind. 429. •' Shirley v. Thompson, 123 Ind. '' Dillman v. Barber, 114 Ind. 403, 454. 24 X. E. 253 ; Floyd v. Miller, 61 16 X. E. 825. Ind. 224; Dillman v. Barber, 114 Ind. 403, 16 X. E. 825. 5l6 INDIANA PROBATE LAW. § 318 While taxes are not such claims as the law requires to be filed against a decedent's estate, yet they are such claims or charges as must be paid by the executor or administrator before making a final settlement of the estate. Such claim must be taken notice of without being filed, and if the executor or administrator pro- ceeds to make a final settlement without paying such claim, he does so at the peril of having such settlement set aside.'* But if at the time of final settlement of an estate, any claim be pending against it unallowed, and the creditors, heirs, devisees or legatees shall execute, to the approval of the claimant, a bond conditioned for the payment of the claim and costs, if adjudged in favor of the claimant, if it shall be allowed, the estate shall be finally settled. The claim shall remain on the docket and be dis- posed of as if such settlement had not been made, and the obligors in such bond may appear and make defense thereto.'^ Only in compliance with this statute can the general rule for- bidding a final settlement of the estate while a claim is pending undisposed of, be avoided. In cases where claims due the estate are outstanding uncol- lected there is a method provided whereby the final settlement of the estate need not be delayed for the collection of such claims. The statute is as follows: If, at the time of the final settlement of any estate, there be any claims due such estate uncollected, and not money enough on hand to pay all the creditors, if any such creditor, whose claim does not exceed the amount of such claim, will accept it in discharge of so much of his claim, it shall be de- livered or assigned to him by the executor or administrator, and the estate shall be finally settled.^" § 318. Notice of final settlement. — That the final settle- ment of an administration account may be made binding and conclusive it is essential that all who may be interested in such settlement should have notice thereof. The same statutes as to " Cullop V. Vincennes, 34 Ind. App. "= Bums' R. S. 1908, § 2923. 667, 72 N. E. 166 ; Graham v. Rus- '" Burns' R. S. 1908, § 2922. sell, 152 Ind. 186, 52 N. E. 806. § 3l8 ACCOUNTING AND SETTLEMENT. 517 the giving of notice to heirs and others interested in the estate, the time of such notice, the manner of giving it, the hearing on the report, etc., appHcable to current settlements, is also made to apply to final settlement accounts/' The statute requires notice to be given by executors and administrators, to all persons inter- ested in the estate, of the time fixed for the hearing of any mat- ters relating to a final settlement report theretofore filed; but the statute does not require the notice to be signed by the execu- tor or administrator, nor does it particularly specify by whom it shall be signed, or that it shall be signed at all. And if the executor or administrator causes due notice to be given, as re- quired, by publication and posting, since the notice required is one which pertains to a judicial proceeding, there is neither im- propriety nor departure from the statute if the notices are signed by the clerk of the court in which the proceeding is pending, in- stead of being signed by such executor or administrator.'^* Such notice is also in substantial compliance with the statute if di- rected "to the heirs, creditors and legatees," instead of "to all persons interested in said estate." As applied to the subject- matter, one is the equivalent of the other. "^^ Where a notice of final settlement has been given, however defective in form, and the court has taken final action upon the report of the executor or administrator, such action cannot be attacked in a collateral proceeding.-" The statute requires the time of hearing the report to be fixed by indorsement thereon by the clerk, but such statute is merely directory. The object of such requirement is to enable the ■' Williams v. Williams, 125 Ind. ment of an estate by an administrator, 156, 25 X. E. 176; see also § 304, upon such notice as the statute pre- ante. Glessner v. Clark, 140 Ind. scribes, is an adjudication of all mat- 427, 39 X. E. 544. ters properly involved in such settle- '* Roberts v. Spencer, 112 Ind. 81, ment; but matters which have not 13 X. E. 127; Wright v. Wells, 29 been wholly or in part subject to the Ind. 354. process of administration cannot be "Roberts v. Spencer, 112 Ind. 81, said to have been adjudicated. Car- 13 N. E. 127. ver v. Lewis, 104 Ind. 438, 2 N. E. "Jones V. Jones, 115 Ind. 504, 18 705 ; Barnett v. Vanmeter, 7 Ind. App. N. E. 20; Kleyla v. Haskett, 112 Ind. 45, 23 N. E. 666. 515, 14 N. E. 387. The final settle- 5l8 INDIANA PROBATE LAW. § 3lS executor or administrator to give to those interested in tlie estate the notice provided for by the statute. It is, therefore, at best a mere irregularity for the court itself to fix the date at which the report shall be heard. And if notice is given of such time so fixed, the hearing at that time does not render the final order void.«^ An order of court discharging an administrator upon a settle- ment made by him without giving notice as required by the statute, is of no force and effect, and does not constitute an adjudication of any right of heirs or creditors who did not ap- pear at such final settlement.^^ Where notice has been given as required by the statute, the order of the court approving the final settlement will be conclu- sive although rendered in the absence of all the parties but the administrator.**^ A notice that a partial settlement will be made will not au- thorize the making of a final settlement, but a final settlement without notice will only have the effect of a partial settlement.*"* The filing of a final report and the giving of the notice re- quired by the statute confers jurisdiction upon the probate court to hear and determine all matters involved in such report.*^ It will be obsen-ed that section 2912, Burns' R. S. 1908, regard- ing notice only provides for giving notice by publication and post- ing, and yet it appears from section 2925, that unless interested parties have been "personally summoned," or do not appear at the hearing upon a final report of an executor or administrator, they are not bound by the order of settlement made by the court, ■''Williams v. Williams, 125 Ind. "Fox v. Rhodes, 43 Ind. .\pp. 573, 156, 25 X. E. 176. Jurisdiction over 88 N. E. 92. the subject of distribution of the sur- ^'^ Jones v. Graham, 36 Ark. 383; plus of an estate to the heirs results Kellett v. Rathbun, 4 Paige (X. Y.) as an incident to the final settlement, 102. without additional notice, and while ** King v. Collins, 21 x-Ma. 363 ; issues may be formed upon adverse Frank v. People, 147 111. 105, 35 X'. E. claims growing out of distribution, it 530; Grant v. Hughes, 94 X^. Car. is not essential that thej^ should be. 231 ; Winborn v. King, 35 Miss. 157. Jones V. Jones, 115 Ind. 504, 18 X. E. *" Mefford v. Lamkin, 38 Ind. App. 20. 33, 76 X. E. 1024. 11 X. E. 960. 319 ACCOUNTING AND SETTLEMENT. 519 although proper notice by posting and pubhcation had been given. It resuhs from this that no order of final settlement is conclusive and unassailable unless all interested parties are brought into court by personal notice.'" § 319. Contesting the report. — The report of an executor or administrator in hnal settlement of an estate is not a com- plaint, nor in the nature of a complaint. It is not the subject of demurrer, nor can it be assigned as error in the Supreme Court, that such report did not state facts sufficient to entitle the execu- tor or administrator to his discharge. In such case the rules of pleading in civil actions are not applicable. Where a party in- terested in a decedent's estate is not satisfied with the final report of the executor or administrator of such estate, he must, by ex- ceptions to such report, point out to the court clearly and specific- ally the grounds of his objection. "' And where objections are filed to such final report, in the proceedings on the hearing of such objections the executor or administrator of the estate stands as the plaintiff and the objectors as defendants. The executor or administrator is reciuired to establish the correctness of his re- port, in respect to such matters as may be embraced in the excep- tions filed by such objectors, and this places the burden of proof on him and gives him the right to begin and conclude the evi- dence, and to open and close the argument.*^ 'Ressner v. Clark, 140 Ind. 427, exceptions filed to reports of execu- 39 X E 544 I'^^'s or administrators. Taylor v. «^'conger v. Babcock, 87 Ind. 497; Wright, 93 Ind. 121. On the trial Dohle V. Stults, 92 Ind. 540. Pay- of exceptions filed to a report the ment of claims out of their order is burden of proof is upon the executor cause for exceptions to a final re- or administrator to show the correct- port. Cunningham v. Cunningham, ness thereof. Taylor v. Burk, 91 94 Ind. 557. An answer is not re- Ind. 252. quired to exceptions to a report, and ^ Wysong v. Nealis, 13 Ind. App. no question is raised by a demurrer 165, 41 N. E. 388; Brownlee v. Hare, to such an answer. Dohle v. Stults, 64 Ind. 311; Hamlyn v. Nesbit, 37 92 Ind. 540. By consent of parties Ind. 284. The filing of his final ac- exceptions to a report may be re- count by an administrator confers f erred to a master commissioner, jurisdiction upon the court to hear Cunningham v. Cunningham, 94 Ind. all matters pertaining or incidental 557. Jury trials are not allowed on to the final settlement of the estate, 520 INDIANA PROBATE LAW. § 32O And the report is admissible in evidence against the executor or administrator making it, but not in his favor. ^° One who was represented at a final settlement only by his guardian, and such guardian was also the administrator of the estate, is said to have no notice of such settlement and not to be present at the consideration of the final report, as the guardian could not represent both his ward and the estate.^*' Upon exceptions to a final report a trial may be had before the court and the court may make a special finding of facts and state conclusions of law thereon."^ And upon a final ruling of the court made after a trial of exceptions to a final report, a motion for a new trial may be filed as in a civil action."^ But where the exceptions are only to certain specified items in the report and the special finding covers these items, a motion for a venire de novo on the ground that the findings do not cover the entire report should be overruled. ^^ § 320. The order of final settlement. — The approval of the final settlement account, the final settlement of the estate, and the discharge of the executor or administrator by the proper court, are an adjudication of all questions involved, and cannot be assailed in a collateral proceeding; and so long as such final settlement stands, interested parties are bound by it. Such settle- ment is a judicial proceeding, and a judgment of a court of and where notice has been given of port, and he has a right to open and such filing by the clerk, however de- close both the evidence and argu- fective in form, the action of the ment on the trial of the cause. Tay- court in the final settlement and dis- lor v. Burk, 91 Ind. 252. tribution of the surplus cannot be at- *" Beal v. State, 11 Ind. 231. tacked in a collateral proceeding. "" State v. Burkam, 23 Ind. App. 271, Jones v. Jones, 115 Ind. 504, 18 N. 55 N. E. 237. E. 20. Where the executor or ad- ''' Swift v. Harlej^ 20 Ind. App. ministrator submits to the court his 614, 49 N. E. 1069; Taylor v. Mc- final settlement report, in the matter Grew, 29 Ind. App. 324, 64 N. E. of his decedent's estate, and excep- 651 ; ante, § 305. tions are filed to such report, requir- "" McDonald v. Moak, 24 Ind. App. ing the trial of questions of fact, the 528, 57 N. E. 159. burden of the issue is on the execu- °^ Roberts v. Dimmett, 45 Ind. App. tor or administrator to sustain and 566, 88 N. E. 870. establish the correctness of his re- 320 ACCOUNTING AND SETTLEMENT. 521 record having jurisdiction over the subject-matter and the par- ties, and is res adjudicata.^^ So long as the final settlement of an executor or administrator remains in force it is to be considered as an adjudication of matters lawfully embraced within it, and as a bar to an action seeking to reopen questions settled by it.^^ So long as the final settlement of an estate remains unrevoked and in full force, letters of administration de bonis non cannot be issued upon such estate, nor can any further administration upon such estate be permitted by any executor or administrator, however appointed f'^ except as provided in section 2395, Burns' R. S. 1894. Under a former statute which did not require that a claim secured by a mortgage should be filed against an estate, it was held that a final settlement of a deceased debtor's estate without the payment of a mortgage claim was no defense to an action against heirs or purchasers to foreclose a mortgage made by the decedent to secure such claim.^^ '■'* Kuhn V. Boehne, 27 Ind. App. 340, 61 X. E. 199; Sanders v. Loy, 61 Ind. 298; Candy v. Hanmore, 76 Ind. 125; Silvers v. Canary, 114 Ind. 129. 16 X. E. 166; Holland v. State, 48 Ind. 391; Pate v. Moore, 79 Ind. 20; State v. Slauter, 80 Ind. 597; Carver v. Lewis, 104 Ind. 438, 2 N. E. 705; Carver v. Lewis, 105 Ind. 44, 2 X. E. 714; Castetter v. State, 112 Ind. 445, 14 X. E. 388. In the case last cited it is said : "Such adjudica- tions are conclusive, because the law requires that guardians and adminis- trators make reports from time to time, and that they make final re- ports and settlement when their re- spective trusts have been adminis- tered. Of the making of all such re- ports those interested must take no- tice, unless the statute makes provi- sion that notice be given." ''Briscoe v. Johnson, 73 Ind. 573; Parsons v. Milford, 67 Ind. 489. Where final settlement of a deceased partner's estate is made in the face of judgmients against the estate for partnership liabilities, a surviving partner who pays a part of the judg- ment before and a part after the set- tlement has an interest in the estate to the extent of the ratable propor- tion of the judgments owing thereby; the fact that he had not paid all the judgments and filed a claim for con- tribution before final settlement not excusing the administratrix from paying the proportion owing by the estate. Harter v. Songer, 138 Ind- 161, 37 X. E. 595. "'Croxton v. Renner, 103 Ind. 223, 2 X. E. 601 ; Vestal v. Allen, 94 Ind. 268; Pate v. Moore, 79 Ind. 20. "'McCallam v. Pleasants, 67 Ind, 542. 522 IXDIAXA PROBATE LAW. § 320 An order of final settlement necessarily means a determination of all matters proper to be included therein. "'* And the approval of a final settlement report is an adjudica- tion that the executor or administrator has properly accounted for all the assets of the estate which came to his hands."'' Such approval when duly entered of record in the proper order book has all the force and effect of a final judgment.^ A guardian who is not the administrator of the estate may represent his ward in the settlement of the estate, and may re- ceipt for the share of his ward. But where one is both guardian and administrator the two offices are antagonistic, and he could not as guardian approve his own report as administrator by re- ceipting himself for his ward's share of such estate on final set- tlement, and an order of court approving such settlement is void as to such ward as being made without notice.^ A judgment approving the final report of an administrator is conclusive so long as it stands uncliallenged, and it is immaterial whether the administrator distributes the money directly or pro- cures an order to pay it to the clerk for designated persons, for such an order is part of the final settlement.^ "" Green v. Brown, 8 Ind. App. 110, notes, belonging to the estate, which 33 X. E. 979. The filing of his final lie failed to include in the inventory account by an administrator confers and account for, but converted to jurisdiction upon the court to hear his own use. Nor can the fact that all matters pertaining or incidental such notes were held by the adminis- to the final settlement of the estate, trator, before his appointment as and where notice has been given of such as trustee for the decedent such filing by the clerk, however de- while living, change the case. Car- fective in form, the action of the ver v. Lewis, 104 Ind. 438, 2 N. E. court in the final settlement and dis- 705,. tribution of the surplus cannot be at- "" Kuhn v. Boeline, 27 Ind. App. tacked in a collateral proceeding. 340, 61 N. E. 199. Jones V. Jones, 115 Ind. 504, 18 N. E. ' State v. Burkam. 23 Ind. App. 20. While the final settlement of a 271. 55 X. E. 237. decedent's estate remains in force, it " State v. Burkam, 23 Ind. App. is conclusive upon the parties inter- 271, 55 X'. E. 237. ested, and an action cannot be main- ' Mefiford v. Lamkin, 38 Ind. App. tained against the discharged admin- 33, 76 N. E. 1024, 77 N. E. 960. istrator to recover the proceeds of § 3^1 ACCOUNTING AND SETTLEAIENT. 523 When a final report is approved by the court the administrator or executor is entitled to an order of discharge to be entered as a part of the final judgment.* §321. Reopening or setting aside final settlements. — As we have seen, the judgment of the court approving the final settlement made by an executor or administrator is impervious to collateral attack, but, like other judgments, such order is sub- ject to direct attack either by appeal or by a compliance with the statute. It is provided that no final settlement shall be revoked or reopened after the close of the term at which the same shall have been made, except as provided in the next section.'' This section reads as follows: "When final settlement of an estate shall have been made and the executor or administrator dis- charged, any person interested in the estate, not appearing at the final settlement, and not personally summoned to attend the same, may have such settlement or so much thereof as affects him adversely, set aside, and the estate reopened, by filing in the court in which the settlement was made, within three years from the date of such settlement, his petition, particularly setting forth the illegality, fraud, or mistake in such settlement or in the prior proceedings in the former administration of the estate, affecting him adversely. The executor or administrator of the estate, and any of the creditors, heirs, devisees, or legatees of the decedent adversely interested in the matters alleged in such petition, shall be made defendants thereto, and shall be entitled to such notice of the pendency thereof as is required to be given under the code of civil procedure to defendants in ordinary actions. If any person interested in an estate shall, at the time of the final settle- ment thereof, be under legal disabilities, he may file such petition within three years from the time of the removal or cessation of such disability."'^ * Hartzell v. Hartzell, Zl Ind. App. istrators for fraud, mistake or ille- 481, 76 X. E. 439. gality. Pollard v. Barkley, 117 Ind. ° Burns' R. S. 1908, § 2924. 40, 17 X. E. 294. The final settle- ° Burns' R. S. 1908, § 2925. The ment of an estate, while a properly circuit courts have jurisdiction to filed claim against it is pending and set aside final settlements of admin- undisposed of, is an illegality for 524 INDIANA PROBATE LAW, § 321 The intention of the statute is to protect executors and admin- istrators from suits, except for mistake or fraud, where the order of final settlement has not been appealed from; but the mistakes contemplated by the statute are mistakes of fact and not mistakes or errors of law committed on the settlement.'^ The provisions of this statute do not apply' to the final settlement and reports of trustees under a will appointed by the court.* One who was personally summoned to appear at the final hear- ing, or who not being summoned voluntarily appeared thereat, cannot have such settlement set aside for any matter which might have been presented and determined at that hearing." Applications to set aside a final settlement must show that tlie complaining party was not personally notified to appear and did not appear at the hearing had on the final report.^*^ which the settlement, upon a proper showing, will be set aside. Dillman V. Barber. 114 Ind. 403, 16 N. E. 825. 'Camper v. Hayeth, 10 Ind. 528; State V. Hughes, 15 Ind. U34. It is not good ground for setting aside a final settlement of an estate that, by mistake, the administrator had col- lected of a debtor the full amount of his note, a credit indorsed on the note being overlooked, no reason be- ing shown why the mistake could not have been discovered before the final settlement. Dickey v. Tyner, 85 Ind. 100. 'Boyd V. Caldwell, 95 Ind. 392. 'Crum V. Meeks, 128 Ind. 360, 27 N. E. 722. A claimant who has been personally summoned to attend a final settlement hearing must then appear and present the facts regard- ing his claim, and, in case of an ad- verse ruling, his remedy is by ap- peal. He cannot afterward have the estate re-opened under the provisions of § 2925, Burns' R. S. 1908. Dill- man v. Barber, 114 Ind. 403, 16 N. E. 825. . "•Dillman v. Barber, 114 Ind. 403, 16 N. E. 825; Williams v. Williams, 125 Ind. 156, 25 N. E. 176. A com- plaint in an action to set aside a final settlement alleged that letters of administration were issued to the administrator May 2d, 1887, and that he made his final settlement Novem- ber 1st of the same 5'ear; that in his final settlement the administrator represented to the court that all debts owing by the estate had been paid, and that he had in his hands for distribution to the widow and heirs a certain amount of money, all of which he had properly distributed, and that thereupon the court received and accepted the report of final settle- ment and discharged the administra- tor; that at the time of the final set- tlement the plaintiff held a just claim against the estate, evidenced by a promissory note, and that the plain- tiff intended to file such claim within the year allowed for filing claims, and would have done so but for the final settlement; that the plaintiff did not appear at the final settle- § 322 ACCOUNTING AND SETTLEMENT. 525 But where the county auditor, acting under section 10340, Burns' R. S. 1908, petitions to set aside a final settlement in order that the property of the estate may be subjected to the payment of delinquent taxes, his petition need not aver that he did not ap- pear at the final settlement and that he was not personally sum- moned to attend the same.^^ § 322. Same — Party must show interest. — Under this stat- ute it is necessary that a party seeking the relief it offers shall be interested in the estate; that he shall not have appeared at the final settlement complained of; and, if not appearing, that he shall not have been personally summoned to attend the same. Such final settlement cannot be revoked or reopened by a creditor whose claim remains undisposed of, who appeared at such settle- ment. He should, at that time, have presented his objections to the approval of the final report submitted, and to the discharge of the executor or administrator, setting forth specifically the facts regarding his claim ; and then, on adverse ruling, he would have a remedy by appeal to the Supreme Court. ^" ment ; not having been summoned, authorized to appear at the final set- and had no notice that it would be tlement made by appellant, and there- made. Held, that the complaint is by bind the state, and as the latter, sufficient. Shirley v. Thompson, 123 in the absence of a statute granting Ind. 454, 24 N. E. 253. such authority, could not be sum- " Graham v. Russell, 152 Ind. 186, moned to attend the hearing of the 52 X. E. 806. "It is a well settled final report made by appellant, there- rule and one of universal application fore the averments in the petition in that the state, in its sovereign ca- respect to these matters are not pacity, can be sued only by its own essential, and their absence does not permission, and then only in the man- render the pleading insufficient as in ner, by which it has consented to be other cases." Graham v. Russell, 152 sued. The state of Indiana has not, Ind. 186, 196, 52 N. E. 806. under any statute, consented that an ^^ Reed v. Reed, 44 Ind. 429; Dill- administrator or executor of an man v. Barber, 114 Ind. 403, 16 N. estate may bring it into court and E. 825. Under .§ 2925, Burns' R. S. thereby force it to become a litigant 1908, any person interested in an es- at the hearing of a final report in re- tate which has been finally settled, if spect to a claim for taxes against he was not personally served with such estate. It is evident, under the summons, and did not appear at the circumstances, we think, that inas- hearing of such final settlement, may much as the county auditor was not have the same set aside if it affects 526 INDIANA PROBATE LAW. § 3^- If the proceedings of the proper court in the settlement of a decedent's estate have been conducted in good faith, and are free from mistake or fraud, and the infant defendants to such final settlement proceedings have appeared therein by their legal guar- dian, or a guardian ad litem, such proceedings are final, and are not liable to be set aside or annulled by such infants appearing upon their arrival at full age." But an action cannot be maintained by persons interested in the estate, against the executor or administrator after his final settlement has been confirmed by the court and he has been dis- charged, for converting assets of the estate to his own use, which were not included in his inventory and accounted for to the estate." Mere mistake or fraud in a final settlement is not enough in order to have it set aside. The plaintiff must also be shown to have such an interest in the estate as caused him to be injured by the mistake or fraud complained of.^^ him adversely, for any of the causes therein specified. Crum v. Meeks, 128 Ind. 360, 27 N. E. 722. "Seward v. Clark, 67 Ind. 289. '' Carver v. Lewis, 104 Ind. 438, 2 N. E. 705. An allegation by an heir, in a petition to set aside the final set- tlement filed after the term at which the settlement was approved, that he had no notice by summons, or other- wise, that the report would be heard on the 14th day of February, the day finally set for a hearing, was not equivalent to an allegation that he was not served with summons to be present on the 7th day of February, the day on which the report was originally set for hearing. If served with process to be present on the 7th day of February, he was bound to take notice of the progress of the cause, and further notice was un- necessary. Williams v. Williams, 125 Ind. 156, 25 N. E. 176. " Spicer v. Hockman, 72 Ind. 120 ; Potter v. Smith, 36 Ind. 231; Penn- sylvania Co. v. Hensil, 70 Ind. 569, 36 Am. Rep. 188; State v. Overturf, 16 Ind. 261. The assignee of the children of a decedent cannot main- tain an action against the latter's ad- ministrator who has made a final set- tlement and has been discharged, while such settlement remains in force, on the ground that, as adminis- trator, he failed to turn over to him- self, as guardian of such children, their portion of assets of the estate, which he failed, as administrator, to inventory and account for, because such final settlement of the dece- dent's estate was an adjudication that he had properly accounted for all such assets. Carver v. Lewis, 105 Ind. 44, 2 N. E. 714. Upon excep- tions by a legatee to a final settle- ment report of an administrator with the will annexed, evidence that, g 323 ACCOUNTING AND SETTLEMENT. 527 An unpaid creditor has sufficient interest to have a final settle- ment set aside which was made before the expiration of the year/" One who assails a final settlement must show that the illegal- ity, fraud or mistake of which he complains worked some pecu- niary damage to him. If he has no right to a share in the assets of the estate, he has no reason to complain." The executor or administrator as such is a necessary party to such a proceeding, and the omission to make him a party in his representative capacity is good cause for a plea in abatement.^^ § 323. Same — For what causes. — The statute requires a complaint to set aside the final settlement of an estate to specify some illegality, fraud, or mistake. This means either in the final report of the executor or administrator or in any of the proceed- ings attendant on the administration of the estate. In an earlier statute the word "illegality" did not appear, and it was held, under that statute, that it contemplated only mistakes of fact and not errors of law.^^ XMiere fraud is charged in such settlement, the facts constitut- ing the fraud must be specifically stated. A mere general allega- tion of fraud is insufficient.-*' V. ithout an order of court and with- ^' Smith v. ^liller, 21 Ind. App. 82, out the knowledge of the legatee, the 51 X. E. 508; Clark v. Schindler, 43 adminstrator invested the legacy in Ind. App. 269, 87 N. E. 44. bank stock in his own name, which '* Clark v. Schindler, 43 Ind. App. stock depreciated in value, and there- 269. 87 X. E. 44. by there was a loss of the portion of "Camper v. Hayeth, 10 Ind. 528; the trust fund, and that he had paid Reed v. Reed, 44 Ind. 429; Pollard the legatee the portion only which v. Barkley, 117 Ind. 40, 17 N. E. 294. remained after deducting the loss, ""Reed v. Reed, 44 Ind. 429; was not sufficient to sustain a find- Booher v. Goldsborough, 44 Ind. 490. ing and judgment confirming the re- Where an administrator fraudulent- port and discharging the administra- ly, by promises to pay a creditor of tor from his trust as to the objecting the deceased, who is sick, with no legatee. Gilbert v. Welsch, 75 Ind. friends at hand but the family of the 557. See Benson v. Liggett, 78 Ind. debtor, puts him off his guard so 452. that he does not file his claim, and '" Shirley v. Thompson, 123 Ind. then fraudulenth-, and without no- 454, 24 N. E. 253. tice to the creditor, makes final set- 528 INDIANA PROBATE LAW. § 323 In a case based upon the statute under consideration, the court says: "It is not the duty of the administrator to assist claimants in the fihng and aUowance of their claims, nor to keep the estate open for the filing of such claims. As to all unfounded or doubt- ful claims, it is his duty to make resistance ; on the other hand, as to bona fide creditors, the administrator holds the estate in trust, and it is clearly not his duty, by any kind of unfair deal- ing, deceit or fraud, to defeat the filing and allowance of their claims. To practice such fraud or deceit, and thereby prevent the filing, allowance and payment of such claims, is a clear viola- tion of duty on the part of an administrator. Such a practice will not be allowed to inure to his benefit, or to the benefit of the estate he may represent." The purpose of the above statute is to prevent such wrong.- ^ Fraud in the inventory returned by an executor or adminis- trator may affect the final settlement of the estate with fraud, and will be good cause for setting such settlement aside." Where a debtor, by mistake, pays the executor or adminis- trator more than he owes the estate, it is no cause for setting -j aside the final settlement where no reason is shown why the mistake was not discovered before the settlement. Good policy requires that the final settlement of an estate should not be dis- turbed on account of alleged mistakes, unless the applicant shows himself to have been reasonably diligent." Allowing the executor or administrator attorney fees for tlement of the estate and is dis- v. Reed, 69 Ind. 319; Chase v. Bee- charged, the estate being solvent, and son, 92 Ind. 61. the creditor not appearing nor being "" West v. Reavis, 13 Ind. 294. summoned, the creditor may, on ap- " Crum v. Meeks, 128 Ind. 360, 27 plication stating the facts, have the N. E. 722. Equity favors the dili- final settlement vacated. But such gent and will not afford relief from an application stating facts which a mistake made in a settlement with merely raise an inference of unfair an administrator, to one who, beside dealing by the administrator toward his negHgence at the time of his mis- the creditor, and making a general take, offers no explanation of his charge of fraud, is not sufficient, failure to discover it before the final Chase v. Beeson, 92 Ind. 61. settlement of the estate and the dis- ^ Miller v. Steele, 64 Ind. 79; Zeek charge of the administrator. Dickey v. Tvner. 85 Ind. 100. § 3-4 ACCOUNTING AND SETTLEMENT. 529 services performed by him personally is good cause for setting aside his final settlement.-* So, also, is the settlement of an estate while a claim is pending undisposed of."^ Mistake, fraud or illegality is sufficient ground for attacking a final settlement. ^'^ If an administrator by false representations induces a creditor not to file his claim and then makes a final settlement of the estate without paying such debt, the settlement may be set aside upon application by the creditor.-^ The failure to pay to the widow her statutory allowance of five hundred dollars is sufficient cause for setting aside a final settle- ment."^ ^ 324. Same — Limitation to action. — An action which seeks to go behind an executor's or administrator's final report will not lie after the expiration of three years from the time such report is approved and final settlement of the same made."^ It was said in one case: "If a final settlement should be made without in some manner disposing of the debts against such estate, within the knowledge of the administrator, we suppose, under this statute, in connection with well-known legal princi- ples, the creditors unsatisfied would be barred of any further action against such administrator after three years. They could not, without getting rid of the final settlement, proceed in an attempt to collect the claim, even upon a judgment of record, because by the final settlement the administrator would have rid himself of all assets to meet such debt, and have been discharged "-' Pollard V. Barkley, 117 Ind. 40, ^' Kingan & Co. v. Hawley, 29 Ind. 17 X. E. 294. App. 376, 64 N. E. 620. "■" Harter v. Songer, 138 Ind. 161, "« Rush v. Kelley, 34 Ind. App. 449, 37 X. E. 595; Heaton v. Knowlton, 73 X. E. 130. 65 Ind. 255; Pollard v. Barkley, 117 ^ State v. Hughes, 15 Ind. 104; Ind. 40, 17 X. E. 294; Dillman v. Camper v. Hayeth, 10 Ind. 528; Reed Barber, 114 Ind. 403, 16 N. E. 825. v. Reed, 44 Ind. 429; Glessner v. ^'Jaap V. Digman, 8 Ind. App. 509, Clark, 140 Ind. 427, 39 N. E. 544. 36 X. E. 50; Pollard v. Barkley, 117 Ind. 40, 17 X. E. 294. 34 — Pro. Law. 530 INDIANA PROBATE LAW. § 325 by the court from further Habihty in reference thereto."^" In an action brought by an administrator de bonis non against a for- mer administrator, for fraud in his final settlement, an answer by such former administrator that he had made a final settle- ment of the estate, which had been confirmed by the court and such administrator discharged, more than three years before such action was begun, is good in bar of the action. ^^ The action provided for by this statute must be begun within three years after the final settlement is made, unless the person interested is under some legal disability at the time of such set- tlement. And such final settlement cannot be set aside even in a direct proceeding for that purpose, unless the action is brought within the three years fixed by this statute. No other statute of limitations applies to such actions.^' As the court says, "there may be cases where to apply the doctrine of res adjudicata, and the limit fixed by the statute within which final settlements may be set aside, may work a hardship, but doubtless such cases will be very few in comparison with the wrongs that would result from an opposite doctrine and a statute fixing a much longer, or no limit. "^^ § 325. Same — Only set aside in direct proceeding. — The final settlement of an executor or administrator can be set aside or opened up only by a direct proceeding for that purpose. It cannot be attacked in a suit on his bond, or by a suit against him personally, or in any other collateral manner; and the orders of the court confirming such final settlement and discharging the executor or administrator, constitute an adjudication of the matters to which they relate, in the same manner as ordinary judgments in a court of record, and if attacked must be by some direct proceeding in the court having control over them.^* =° Beard V. First Presby. Church, 15 Ind. 445. 14 N. E. 388; Carver v. Ind. 490; Vestal v. Allen, 94 Ind. Lewis, 105 Ind. 44, 2 N. E. 714. 268. '=' Carver v. Lewis, 104 Ind. 438, 2 "Sanders v. Loy, 61 Ind. 298. N. E. 705; Spicer v. Hockman, 12 ''Carver v. Lewis, 104 Ind. 438, 2 Ind. 120; Horton v. Hastings, 128 N. E. 705; Castetter v. State, 112 Ind. 103, 27 N. E. 338. =' Barnes v. Bartlett, 47 Ind. 98; § 2,2=)2i ACCOUNTING AND SETTLEMENT. 53 1 So long as such settlement remains in force it is binding on everybody. It has the force and effect of a final judgment,^^ and precludes all collateral inquiry into its correctness by parties interested therein who were duly notified so long as such judg- ment remains in force. ^'^ But it is an adjudication so far only as it rests upon matters properly embraced within the report relative to the proper man- agement and settlement of the estate. ^^ An appeal taken from a judgment in a proceeding to set aside or reopen the final settlement of an executor or administrator, is not governed by the provisions of the code of procedure on appeals in civil cases, but such appeal must be taken in accord- ance with the provisions of the act relating to the settlement of decedents' estates upon the subject of appeals.^^ § 325a. Accounting by trustees under benevolent devise. — That, whenever property or money is willed or donated for benevolent public purposes, that it shall be the duty of the trus- tees of such property or money, incorporated or otherwise, to make a sworn report once a year to the circuit court of the county in which such property or money is to be appropriated Holland v. State, 48 Ind. 391 ; Par- by it. and cannot maintain an action sons V. Milford, 67 Ind. 489; Lang against the discharged administrator V. State. 67 Ind. 577; Peacocke v. upon the ground that he converted to Leffler, 74 Ind. 327; Pate v. Moore, his own use assets of the estate 79 Ind. 20. which he should have included in "Carver v. Lewis, 104 Ind. 438, 2 the inventory and accounted for to N. E. 705 ; Carver v. Lewis, 105 Ind. the estate, and that such final settle- 44, 2 N. E. 714. ment cannot be set aside after three ^^Jaap V. Digman, 8 Ind. App. 509, years subsequent thereto." Carver v. 36 N. E. 50; Pate v. Moore, 79 Ind. Lewis, 104 Ind. 438, 2 N. E. 705. 20. "The holding of our cases is, Sanders v. Lo}^, 61 Ind. 298; Candy that the approval of the final settle- v. Hanmore, 76 Ind. 125; Reed v. ment account, and the final settle- Reed, 44 Ind. 429; Vestal v. Allen, ment of the estate by the probate 94 Ind. 268. court, are an adjudication of all "Jaap v. Digman, 8 Ind. App. 509, questions involved and cannot be 36 N. E. 50; Wainwright v. Smith, assailed in a collateral attack, and 106 Ind. 239, 6 N. E. 333. that so long as such final settlement '^Webb v. Simpson, 105 Ind. 327, stands, interested parties are bound 4 X. E. 900. See Chapter 20. 532 INDIANA PROBATE LAW. § 325a according to the purposes of the donors; of the condition of such property or money, and how said money is invested, and the security for the same, and if the rents or interest of said property or money has been expended in accordance with the purposes of the donor; and said report is to bear the signature of all the trustees having charge of such property or money where such trustees reside; and upon failure of the trustees to make such sworn report, they are each to be subject to a fine of not less than fifty ($50) dollars.^^ It shall be the duty of the judge of the circuit court of the county in which such trustees reside, to approve said report, and to see that the conditions of the donor of money for benevolent purposes be carried out according to the purposes of the donor ; and if such trustees fail in any one year to render such report, the judge shall issue an order compelling them to appear and show cause why they did not report, and all costs accruing in such cases, are to be paid by said trustees.'*"' ■'"'Burns' R. S. 1908, § 3173. **> Burns' R. S. 1908, § 3174. CHAPTER XIV. DISTRIBUTION — PAYMENT OF LEGACIES — DISCHARGE. § 326. 328. 329. 330. 331. 332. m. 334. 335. 336. 2>Z1. 338. 339. 340. Closing the administration. What shall be distributed. When distribution shall be made. Distribution to the widow. The rights of heirs or dis- tributees. Right of set-off to legacies and distributive shares. The rules of distribution. Distribution to the widower. Kindred of the half-blood. Illegitimates, and adopted chil- dren. Charging advancements. Advancements, how reckoned, the statute. Advancements in testate estates. As to the order of distribu- tion. As to shares of minors with- out guardian. § 341. Court may order bond to re- fund. 342. Payment before final settle- ment. 343. The payment of legacies. 344. Legatee's title — Executor's consent. 345. As to void and lapsed legacies. 346. Different kinds of legacies. 347. Out of what fund legacies to be paid. 348. Interest on legacies. 349. Ademption and satisfaction of legacies. 350. Legacy to creditor. 351. When legatee a minor — Exec- utor cannot purchase. 352. The order of discharge. 353. Distribution of real estate of unknown heirs. 354. Same — Xotice — Appearance — Disposition of money, etc. 355. Same — A species of escheat. § 326. Closing the administration. — The final settlement of an estate by the executor or administrator is not complete until the surplus, if any, in hand, after payment of all debts and liabil- ities, has been paid to the legatees and distributees. The residue of the estate must be distributed among those entitled to it ac- cording to law and under direction of the court, before the execu- tor or administrator is entitled to a discharge from his trust. Distribution to those entitled thereto, and the payment of all leg- 533 534 INDIANA PROBATE LAW, § 326 acies, is essential to a complete administration, and an estate can- not be legally closed until this has been done/ The balance in hand, upon an accounting in final settlement of an estate, must be paid out under the personal supervision of the administrator or executor upon a proper order of court, or it may be paid into court to be distributed by the clerk. The effect is the same — whether the fund be retained by the administrator and paid out by him, or whether it is paid by him to the clerk of the court. The term "final settlement" comprehends a payment of the balance in the administrator's hands so as to leave nothing to be done to complete the trust. The order of distribution is, however, as much a part of the final settlement, where the fund is in the hands of the clerk, as where it is retained by the admin- istrator. In the sense in which the term distribution is used in this connection it has reference to the personal property and money arising from the sale of real estate, and its payment to the heirs after the payment of the debts and legacies." The order of distribution is a judicial ascertainment of the right of the next of kin and legatees to their respective shares of the estate, and if the notice required by law has been given of the presentation of the final account and all parties interested are before the court, such order is final and conclusive whether the interested parties appear or not, or whether under disability or not.^ To be in proper form the order of distribution should set out the name of each person entitled, and also the sum or amount due each, and in case of a specific legacy the particular thing due;* and if an infant is a distributee or legatee the order should be to 'Mefiford v. Lamkin, 38 Ind. App. Lamkin, 38 Ind. App. 33, 76 N. E. 33, 76 N. E. 1024, 77 N. E. 960; 1024, 77 N. E. 960. Sherwood v. Thomasson, 124 Ind. ' Glessner v. Clark, 140 Ind. 427, 541, 24 N. E. 334; Martin v. EUerbe, 39 N. E. 544; Bresee v. Stiles, 22 70 Ala. 326. Wis. 120; State v. Blake, 69 Conn. "Beard v. Lofton, 102 Ind. 408, 2 64, 36 Atl. 1019; Goad v. Montgom- N. E. 129; Dufour v. Dufour, 28 cry, 119 Cal. 552, 51 Pac. 681, 63 Am. Ind. 421; Jones v. Jones, 115 Ind. St. 145; Ladd v. Weiskopf, 62 Minn, 504, 18 N. E. 20 ; Carver v. Lewis, 29, 64 N. W. 99, 69 L. R. A. 785. 105 Ind. 44, 2 N. E. 714; Mefford v. * Sankey v. Sankey, 8 Ala. 601; § 326 DISTRIBUTION LEGACIES DISCHARGE. 535 such infant and not to the guardian, although a legal guardian may legally discharge the administrator or executor by receipting for the amount due his ward.' The order or decree of distribution should be a final and abso- lute disposition of the funds in the hands of the executor or ad- ministrator and should not be made to depend on any possible contingency in the future, or upon any question affecting the distribution remaining open and unsettled.^ For the effect of the decree is to vest the title to the share in the distributee, and the court loses jurisdiction over the property and therefore cannot subsequently make a different disposition of the property.' An order of distribution and discharge procured by an admm- istrator or executor while there is a claim unallowed pending against the estate, or some demand outstanding unpaid, or before the expiration of the time for filing claims, is invalid, and may be set aside, or such officer held liable.^ When a final settlement account shall have been filed, and notice given to the heirs, devisees and legatees to prove their claims to the surplus, as hereinbefore provided, they shall appear before the court, in person or by attorney, and in case of infants and persons of unsound mind, by their guardians, and make proof of their heirship, or other title to such surplus.** The notice to be given, referred to in this statute, is as fol- lows : "If the account is filed for final settlement, the notice shall also require the heirs of the decedent, and all others interested, to appear and make proof of their heirship or claim to any part of said estate."'' And if such notice has been given, however defect- Roberts V. Dale, 7 B. Mon. (Ky.) Schmidt v. Stark, 61 Minn. 91, 63 N. 199; Grant v. Bodwell, 78 Me. 460, W. 255. ,,,,., ,. 7 ^^j j2 -Prefontaine v. McMicken, 16 ^ State V. Burkam, 23 Ind. App. Wash. 16, 47 Pac. 231. 271 55 X E 237; Sankey v. Sankey, 'Shirley v. Thompson, 123 Ind. 6 Ala. 607; Henry v. State, 9 Mo. 454, 24 N. E. 253; Whitney v^Piney, 778 51 Minn. 146, Si N. W. 198; Browne Cummings v. Cummings, 143 v. Doolittle, 151 Mass. 595, 25 N. E. Mass 340, 9 N. E. 730; Merrick v. 23. Kennedy 46 Neb. 264, 64 N. W. 989 ; " Burns' R. S. 1908, § 2928. Ham V.' Kornegay, 85 N. Car. 119; ^" Ante, § 304. 53^ INDIANA PROBATE LAW. § 327 ively, and the court having jurisdiction of the subject-matter of the proceeding has held the notice to have been sufficient, the judgment rendered by such court upon a final settlement account and ordering distribution of the surplus, cannot be attacked col- laterally, either upon the ground that there was no notice, or that the notice was fatally defective. ^^ To protect the administrator notice is essential, and it should be such notice as the statute prescribes/' § 327. What shall be distributed. — After the payment by the executor or administrator of all the debts and liabilities of the estate, the property, if any, remaining in his hands belongs to the heirs or legatees of the decedent. In one case such fund is held for distribution to the heirs or next of kin of the intestate, in the other it is to be paid in form of legacies to those named by the will to receive it. In both cases such surplus in his hands is personal property and is governed in its distribution by the rules of law governing that species of property. Personal property is subject to the law which governs the person of the owner. Kent lays down the following as the rule : "It has become a settled principle of international jurisprudence, and one founded on a comprehensive and enlightened sense of public policy and convenience, that the disposition, succession to and distribution of personal property, wherever situated, is gov- erned by the law of the counti-y of the owner or intestate's dom- icile, at the time of his death, and not by the conflicting laws of the various places where the goods happened to be situated. "^^ This rule of law is, in fact, so well settled, that none longer dare dispute it.^* In the sense of the statute, and in the sense in which the term is generally used, the distribution of an estate has reference to "Jones V. Jones, 115 Ind. 504, 18 "2 Kent. 429. N. E. 20; Kleyla V. Haskett, 112 Ind. '"Irving v. McLean, 4 Blackf. 515, 14 N. E. 387. (Ind.) 52; McClerry v. Matson, 2 '=Oakes v. Buckley, 49 Wis. 592, 6 Ind. 79; Warren v. Hofer. 13 Ind. N. W. 321; Long v. Thompson, 60 167. III. 27. § 3^7 DISTRIBUTION LEGACIES DISCHARGE. 537 the division and apportionment of the personal property and money arising from the sale of real estate by the administrator among" the heirs of the decedent after the payment of all the debts and legacies. Where there is no will, the land is not dis- tributed, but descends directly to the heirs. Nor where there is a will are the lands distributed in the statutorv- and ordinary sense, but its descent is controlled by the will. In the absence of anything to the contrary, it will be presumed that the word "dis- tribution" is used in the statutory and ordinary sense.^^ The administrator of an estate is a trustee for the person or persons entitled by law to a distributive share of that estate, and such trust is a direct one.^" Land which has been sold by an executor or administrator, the proceeds of which remain in his hands at final settlement is, in its distribution, treated as personal property. Where a testator by his will expressly authorizes his executors to sell his real estate and divide the proceeds among his children and heirs, it is, in effect, a conversion of the land into personal property, and it must be considered and treated as money, and its distribution is governed by the same rules as if the donation, in the first instance, had been money." And where the land has been sold in the lifetime of an intestate, the proceeds, whether secured by note or otherwise, become assets in the hands of his administrator, and without reference to the source whence de- rived are governed, in their distribution, by the rules prescribed for the descent of personal property.^® "Beard v. Lofton, 102 Ind. 408, 2 the widow and children, if there X. E. 129. were any. Statutes were afterwards " Smith V. Calloway, 7 Blackf. passed which provided in detail for (Ind.) 86; Nugent v. Laduke, 87 the distribution of the surplus of all Ind. 482; Raugh v. Weis, 138 Ind. estates. Enactments of this char- 42, Zl N. E. 331. "Anciently the ad- acter are found in all the states." ministrator or ordinary, in right of Sherwood v. Thomasson, 124 Ind. the king, himself appropriated the 541, 24 X. E. 334. residue of an intestate's estate, after "Rumsey v. Durham, 5 Ind. 71. payment of the debts, assuming to '^ Henson v. Ott, 7 Ind. 512; devote certain portions to pious uses, Cooper v. Cooper, 21 Ind. 124. and to give certain other portions to 538 INDIANA PROBATE LAW. § 328 The statute makes this one distinction, however, as to the sur- plus arising from the sale of lands, where it provides that on the final distribution, it shall be distributed to those to whom the land itself would have descended, or passed under the will.^'' But a testator cannot change realty to personal estate by a mere declaration in his will that it shall be one or the other. The fiction of constructive conversion rests on the proposition that in the absence of intervening interests or rights, the testator's in- tention so far as it affects the beneficiary will control. But the doctrine is qualified to this extent that the conversion does not take place until the event transpires when the conversion should be made.*° One prominent author says : 'Tn connection with this subject it must be remembered that, for the purposes of succession, prop- erty converted retains the character it had at the time of the owner's death; hence the surplus of the proceeds of lands sold for the payment of debts, either under a power given by will, or by order of the probate court, not needed for the purpose of the sale, goes to the persons to whom the real estate would have gone if not converted. It goes, however, as personalty, that is, the con- version becomes complete when it reaches the one who is entitled to it; and if he dies before coming into actual possession, it will pass to his personal representative and not to his heir."-^ § 328. When distribution shall be made. — When the de- ceased shall have died intestate, the surplus of his estate remain- ing in the hands of the executor or administrator after the pay- ment of debts and expenses of administration (and in case the deceased shall have died testate, after the payment of legacies also) shall be distributed to the legal heirs of the deceased accord- " Burns' R. S. 1908, § 2927. In the maining after the payment of debts absence of a showing to the con- and legacies. Beard v. Lofton, 102 trary, it will be presumed that the Ind. 408, 2 N. E. 129. word "distribution" was used in the "" Comer v. Light, — Ind. — , 93 N. statutory and ordinary sense with E. 666. reference to the personal property ^ Woerner Am. Law Admin., § and money arising from the sale of 562 ; Walling v. Scott, — Ind. App. -real estate by the administrator, re- — , 96 N. E. 481. § 328 DISTRIBUTION LEGACIES DISCHARGE. 539 ine to the laws of this state in force at the time of his death, un- less he was, at the time of his death, an inhabitant of another state ; in which case the surplus arising from the personal estate of the decedent shall be distributed according to the laws cf that state; or, if administration of his estate be pending in such for- eign state, such surplus may, under the order of the court, be paid over to the executor or administrator appointed in such for- eign state. If any part of such surplus shall have been derived from the sale of the decedent's real estate by the executor or ad- ministrator for the payment of debts or legacies, such part shall be distributed to the heirs or devisees to whom the real estate de- scended or was devised, according to their respective interests therein by descent or under the will.^^ There can be no final settlement of an estate or distribution of the surplus until after the expiration of one year from the time of the appointment of an executor or administrator. The statute provides for the distribution of the surplus remain- ing after the payment of all debts. And as the creditor of a de- cedent is allowed a full year in which to present and file his claim, and as there can be no final settlement until the end of one year, it would seem to follow that there can be no distribution of the assets of the estate to the legal heirs of the decedent, until after the expiration of one year from the first issue of letters thereon, and notice thereof given. And any executor or administrator who makes a distribution of the assets of his decedent's estate before the expiration of that time misapplies to that extent the funds of the estate, and will be held liable for the full amount thereof to any creditor or other person interested in the due ad- ministration of the estate who is injured by such misapplication. The same rule also applies to any distributee, who, with full =^ Burns' R. S. 1908, § 2927. The 13 Ind. 167. When a will gives the personal estate of a decedent, no executor control of the estate^ de- matter where situate, is to be dis- vised to minors during their minor- tributed in accordance with the laws ity, the guardian of such minors is of the state where the decedent re- not entitled to the possession of such sided at his death. McClerry^ v. Mat- estate. Branch v. Holcraft, 14 Ind. son, 2 Ind. 79; Thieband v. Sebas- 237; Reed v. Bishop, — Ind. App. — , tian, 10 Ind. 454; Warren v. Hofer, 97 N. E. 1023. 540 INDIANA PROBATE LAW. § 329 knowledge of all the facts, receives his full distributive share of such estate before the end of one year,-^ Stock in a corporation which remains unsold in the hands of an executor or administrator shall be distributed to the heirs or legatees and duly transferred to them under the direction of the court.^* § 329. Distribution to the widow. — The statutory allow- ance made to a widow constitutes no part of the surplus remain- ing, after the payment of debts, in the hands of an executor or administrator for distribution, and should not be by him taken into account in making such distribution. ^° The widow is entitled to one-third of the remaining surplus in the hands of an executor or administrator as her distributive share of her deceased hus- band's estate, aside from the statutor}^ allowance awarded her. This is the rule in testate estates only and is probably modified by the first proviso of the section-'' in which it is found to har- monize it with the provisions in intestate estates found in sections 3018 and 3027, Bums' R. S. 1908. And prior to 1891, in case the husband died testate, the widow, as to the distribution of his personal estate, was governed entirely by the terms of her husband's will ; but the legislature, by an act approved March 9, 1891, conferred upon the widow in such cases the right to elect as to the personal property of her husband, whether to take under his will or under the law, as she is required now to do in reference to real estate, and giving her one-third of the personal estate whether the husband should die testate or in- testate. The act reads as follows : "If a man die testate, leaving a widow, one-third of his personal estate shall descend to said widow, subject, however, to its proportion of the debts of said decedent : Provided, however. That nothing in this act shall be construed to reduce the interest which the law now gives a widow in the estate of a deceased husband ; And provided further. That such widow may elect to take under the will of said decedent in- '' Fleece v. Jones, 71 Ind. 340. =* Hays v. Buffington, 2 Ind. 369. =^ Burns' R. S. 1908, § 2796. =« Burns' R. S. 1908, § 3025. § 329 DISTRIBUTIOX LEGACIES DISCHARGE. 54I Stead of this or any other law of descent of this state, which election shall be made within ninety days after said will has been admitted to probate in this state, and in the same manner as widows are now required by law to elect.'"'' This section of the statute is now modified as to the time when an election shall be made by the act of 1907, page -j^, in so far at least as to all cases where the decedent died after the taking effect of the latter act. In intestate estates the widow is now given one-half of the per- sonal property of her deceased husband where there is but one child ;^^ and if he leaves no child, and the value of all his prop- erty, real and personal, exceeds one thousand dollars, she is ^iven three-fourths if the husband leaves a father or mother or both surviving,-^ otherwise she is entitled to all.^^ These statutes, so far as the deceased husband's personal estate is concerned, apply only on final distribution, and to whatever surplus remains after the payment of debts and liabilities. The widow takes nothing in the personal estate as against creditors except her statutory allowance of five hundred dollars."^ \Mien her relation is established, her right to participate in the fund to an amount fixed by law is absolute, unless that right has been forfeited by her misconduct, or unless some equitable set- off sufticient to discharge the amount can be established. ^- And so far as a decedent's personal property is concerned, the statute makes no distinction between the widow of a first or any subsequent marriage.^^ Her right in the property of her de- ceased husband must be determined by the law in force at the time of his death. ^* Where a wife dies leaving no statutory- heirs living, her dis- =^ Burns' R. S. 1908, § 3025. not negative any of the provisions -'Burns' R. S. 1908, § 3018. of the statute which in certain con- ^ Burns' R. S. 1908, § 3027. tingencies deprive her of some in- '' Burns' R. S. 1908, § 3028. terest in such estate. Sherwood v. ^ Roberts v. Dimmett, 45 Ind. App. Thomasson, 124 Ind. 541, 24 N. E. 566, 88 N. E. 870. 334. '- In an application by a widow for '^ Sigler v. Hooker, 30 Ind. 386. a distribution to her of her share of " Leib v. Wilson, 51 Ind. 550. the estate of her husband, she need 542 INDIANA PROBATE LAW. § 33O tributive share or interest in an estate in process of settlement at the time of her death will pass to her husband.^^ The widow of a decedent is a comi>etent witness on an applica- tion for the distribution of the surplus in the hands of an ex- ecutor or administrator.^" A claim for a distributive share of the surplus of an estate is not a claim against the estate in the ac- cepted meaning of that term, and the evidence of the claimant is properly admissible." If a widow remarries before receiving her distributive share of the estate of her deceased husband her right to such share is not thereby barred, and her share is to be determined by the amount of property in her husband's possession at the time of his death, and is not to be affected by any advancements made by him to his children during life; nor is her interest to be charged with any accountability for property she may have received frgm her husband before his death. ^* § 330. The rights of heirs or distributees. — The personal estate of a decedent is subject to the laws of descent and the title thereto is cast upon his heirs subject only to the payment of his debts, and they are entitled to its possession subject only to right of the personal representatives of such decedent to apply it in the payment of debts. If a decedent was not indebted at the time of his death, his heirs, by agreement among themselves, could make a distribution of his estate and thus avoid the appoint- ment of an administrator.^^ '' Pickens v. Hill, 30 Ind. 269. Salter v. Salter, 98 Ind. 522 ; Holz- '" Sherwood v. Thomasson, 124 Ind. man v. Hibben, 100 Ind. 338; Hum- 541, 24 N. E. 334. phries v. Davis, 100 Ind. 369. The " Shaffer v. Richardson, 27 Ind. right of heirs to participate equally 122; Hamlyn v. Nesbit, 37 Ind. 284. in the estate of their ancestor is su- '* Foster v. Fifield, 20 Pick. (Mass.) perior to that of a lien-holder with 67; Ralston v. Thornton, 36 Ga. 546; notice. Foltz v. Wert, 103 Ind. 404, In re, Morgan, 104 N. Y. 74, 9 N. E. 2 N. E. 950 ; Fiscus v. Moore, 121 861: Barnes v. Allen, 25 Ind. 222; Ind. 547, 23 N. E. 362, 7 L. R. A. Ruch V. Biery, 110 Ind. 444, 11 N. E. 235. The law favors an equal dis- ^12. tribution of an estate among the ''Martin v. Reed, 30 Ind. 218; children of the deceased owner; and Mitchell V. Dickson, 53 Ind. 110; it favors a distribution between near 330 DISTRIBUTION LEGACIES DISCHARGE. 545 Before final settlement of an estate and distribution, the heirs cannot maintain a suit to recover, from a third person, property belonging to the estate ; such third person is liable to account for such property only to the executor or administrator of the estate, and he is the proper party to sue/^ The unascertained distributive shares of a decedent's estate in the hands of his personal representatives are "effects" within the meaning of the statute liable to attachment; but an order of attachment made by a court against a non-resident distrib- utee cannot have effect upon the share of such distributee until after final settlement of the estate/^ The right of the creditor in such instance is subordinate to the right of the executor or administrator to deduct from the share of a distributee, or from the legacy of any legatee, any sum owing bv either to the estate of the decedent/- and remote heirs per stirpes in pref- erence to per capita. Kilgore v. Kil- gore, 127 Ind. 276, 26 N. E. 56. Un- der an agreement, signed by the heirs of L., that "in the distribution of" his estate B. "shall receive an equal share with each other child," B. is entitled to share in the common estate, if any, in which each is en- titled to share, and not in personal property and lands which have been disposed of by will to one of such other children. Beard v. Lofton, 102 Ind. 408, 2 X. E. 129. *°Filligin V. Wylie, 3 Ind. 163. "Stratton v. Ham, 8 Ind. 84. 65 Am. Dec. 754; Burns' R. S. 1908, § 977. A will gave lands for life to the testator's wife, which at her death were to be sold, the proceeds to be equallj' divided amongst his five children. At the suit of a creditor of one of the children, his share of the lands was attached and the exec- utor garnished, a judgment obtained, ordered to sell the attached lands, and that the executor pay on final settlement of the estate, of the debtor child's distributive share, to the creditor, a sum sufficient to satis- fy the judgment. The creditor bought the attached land at sheriff's sale, and took a sheriff's deed. The executor died, and an administrator de bonis non, upon death of the widow, sold the land, by order of court, as the will directed. Held, that the share of the debtor child in the proceeds should be paid to his creditor, who, by the sheriff's sale, had become the owner of the child's interest in the land, and, consequent- ly, was entitled to the proceeds there- of. Simonds v. Harris, 92 Ind. 505 ; Koons v. Mellett, 121 Ind. 585, 23 N. E. 95, 7 L. R. A. 23 In. '' Holmes v. McPheeters, 149 Ind. 587, 49 N. E. 452: New v. New, 127 Ind. 576. 27 N. E. 154; Koons v. Mellett, 121 Ind. 585, 23 N. E. 95, 7 L. R. A. 231n; Fiscus v. Fiscus, 127 Ind. 283, 26 N. E. 831; Weaver v. Gray, Zl Ind. App. 35, 16 N. E. 795. 544 INDIANA PROBATE LAW. g 33O Ordinarily probate courts have no power to determine the validity of a disputed assignment of a legacy or of a distributive share of the estate. The order of distribution should be made to the one who legally would succeed to the property leaving all questions of disputed rights to be settled in the courts in the reg- ular way.^^ But where the claim of an assignee to a legacy or to a distributive share is undisputed the probate court would have authority to decree payment to the assignee.** And as an as- signee could take no greater right in a legacy or distributive share than the assignor possessed, he would take such claim subject to all rights of set-off in favor of the executor or administrator against the assignor.*^ The assignment or sale of one's interest in the estate of a liv- ing person passes no title to such assignor's distributive share of the estate after the death of the owner.*'' The rule is that the law in force at the time of the death of the decedent will control the rights of his legatees and distributees. From this doctrine it follows that if a person entitled to a dis- tributive share of an estate dies before distribution is made, or before his legacy has been paid to him, his share will go to his personal representatives and not to those who by reason of his death, have become the next of kin of the testator or intestate.*^ It is practically the universal rule in this country, particularly as between an intestate and his own children, that posthumous children, born within the usual period of gestation after the death of the intestate, will be entitled to share in the estate of the in- '' Johnson v. Jones, 47 Mo. App. (Pa.) 79; Ford v. O'Donnell, 40 Mo. 237; Wood v. Stone, 39 N. H. 572; App. 51; Hopkins v. Thompson, 12, Hill V. Hardy, 34 Miss. 289; Know!- Mo. App. 401. ton V. Johnson, 46 Me. 489; Hoi- '"Smith v. Baylis, 3 Dem. (N. Y.) comb V. Sherwood, 29 Conn. 418; In 567; McClure v. Raben, 133 Ind. 507, re, Randall, 152 N. Y. 508, 46 N. E. ZZ N. E. 275, 36 Am. St. 558; Habig 945. V. Dodge, 127 Ind. 31, 25 N. E. 182. "Otterson v. Gallagher, 88 Pa. St. "Brown v. Critchell, 110 Ind. 31, 355; Vanhorn v. Walker, 27 Mo. 7 N. E. 888, 11 N. E. 486; Sarver v. App. n. Beal, 36 Kan. 555, 13 Pac. 743; ^^Keim v. Muhlenberg, 7 Watts. Thompson v. Thomas, 30 Miss. 152. § 331 DISTRIBUTION LEGACIES DISCHARGE. 545 testate father as if they were born during his Hfetime and had survived him.*® Judgments taken against an heir in the Hfetime of the ancestor become hens upon such heir's interest in the land of the ancestor at his death, and upon a sale of the land by the administrator the lien of such judgTnent is transferred to the proceeds of the sale in the hands of the administrator and binds the heir's distributive share in such proceeds to the same extent that it did the land.*^ § 331. Right of set-off to legacies and distributive shares. — The indebtedness of a legatee or distributee to the estate of the decedent constitutes assets of such estate which the executor or administrator must charge himself with and collect and account for as in the case of other assets. If such legatee or distributee is insolvent so that such debt cannot be collected from him, or for any reason neglects or refuses to pay it, the law permits the ex- ecutor or administrator to retain the amount of such indebtedness from any legacy or distributive share due such debtor on final settlement. And this right of set-off exists in favor of the estate whether the legatee or distributee was indebted to the deceased before his death, or whether the liability was contracted with the estate thereafter,^" and even where the debtor's property is less than the amount allowed to him by law as exempt from execu- tion.°^ But an indebtedness due to the administrator personally cannot be set off.°^ The right of the executor or administrator to deduct a debt due to the estate from the legatee or distributee is usually denomi- nated the right of set-off, and yet in a strict sense it is not set- off. It is said in one case that "the ground upon which an admin- istrator is entitled to retain so much of the distributive share of ^^4 Kent. Com. 412; 1 Bl. Com. E. 154; Gosnell v. Flack, 1(i Md. 423, 130; Morrow v. Scott, 7 Ga. 535; 25 Atl. 411, 18 L. R. A. 158. Cox V. Matthews, 17 Ind. 367. "' Fiscus v. Fiscus, 127 Ind. 283, 26 '"Taylor v. McGrew, 29 Ind. App. N. E. 831. 324, 64 N. E. 651; Koons v. Mellett, == McLaughlin v. Barnes, 12 Wash. 121 Ind. 585, 23 N. E. 95, 7 L. R. A. ZIZ, 41 Pac. 62; Dray v. Bloch, 29 23 In. Ore. 347, 45 Pac. 112. ^ New V. New, 127 Ind. 576, 27 N. 35 — Pro. L.\w. 246 INDIANA PROBATE LAW. ^33^ a distributee as will satisfy a debt due from the latter to the estate is, that the heir or distributee makes a demand upon the administrator in respect to assets in his hands as administrator, and the just and equitable answer in such case is that the person making the demand has already in his hands assets belonging to the estate in excess of the amount of the distributive share which he is demanding.'""' And this right of retainer or set-off exists against an assignee, alienee, or creditor of the legatee or distribu- tee as well as against such legatee or distributee himself/'' As soon as the administrator or executor ascertains the amount which will be due from him to a legatee or distributee, it becomes his duty to apply such sum to the debt owing to the estate from such legatee or distributee." The right of heirs to participate equally in the estate of their ancestor is superior to that of a lienholder with notice. Therefore a debt due the estate from one heir may be retained out of his distributive share of the surplus proceeds arising from a sale of land by the administrator as against the mortgagee of such heir, who took a mortgage upon the heir's undivided interest in the land sold with notice of the debt to the estate.^'' "'Fiscus V. Moore, 121 Ind. 547, 23 of the debt, must be payable by the N. E. 362, 7 L. R. A. 235; Water- person entitled to receive the debt." man Set-off, § 210. But, as Lord La Foy v. La Foy, 43 N. J. Eq. 206, Cottenham remarked in Cherry v. 10 Atl. 266, 3 Am. St. 302. Boultbee, 4 Mylne & Craig, 442, "the '* Ranking v. Barnard, 5 Madd. Ch. term 'set-off' is very inaccurately 28; Koons v. Mellett, 121 Ind. 585, used in cases of this kind. In its 23 N. E. 95, 7 L. R. A. 231n; Weak- proper use, it is applicable only to ley v. Conradt, 56 Ind. 430; Fiscus mutual demands, debts and credits, v. Moore, 121 Ind. 547, 23 N. E. 362, The right of an executor of a cred- 7 L. R. A. 235. itor to retain a sufficient part of a '^Fiscus v. Fiscus, 127 Ind. 283, 26 legacy given by the creditor to the N. E. 831 ; Weaver v. Gray, 27 Ind. debtor, to pay a debt due from him App. 35, 76 N. E. 795; Moore v. to the creditor's estate, is rather a State, 43 Ind. App. 387, 84 N. E. right to pay out of the fund in hand, 161. than a right of set-off. Such right "Fiscus v. Moore, 121 Ind. 547, of payment, therefore, can only arise 23 N. E. 362, 7 L. R. A. 235; Koons where there is a right to receive the v. Mellett, 121 Ind. 585, 23 N. E. 95, debt so to be paid; and the legacy 7 L. R. A. 231n ; New v. New, 127 or fund, so to be applied in payment Ind. 576, 27 N. E. 154. "These cases 8 T "> T DISTRIBUTION LEGACIES DISCHARGE. 547 The general fund in hand for distribution is, for that purpose, personal property, although the statute provides that the portion of the fund arising from the surplus of the proceeds of the sale of lands by the administrator shall go to those who would have taken the land, yet this will not, as of course, cany liens from the land and attach them to the fund, so as to bar a right of set-off or retainer by the administrator.^^ The fact that the debt owing to the estate by an heir or legatee is barred by the statute of limitations so as to preclude a recovery thereon by the executor or administrator, is no defense to the right of such officer to retain such debt out of the share of such heir or legatee."* Where a legatee or heir owes to the estate of the decedent both all recognize the right of heirs to participate equally in the estate of their ancestor, and this could not be if one heir, and hence a distributee, should be indebted to the estate in an amount equal to less or more than his distributive share. In all of the cases cited it is apparent that the rule therein declared rests upon the proposition that heirs of the same class are entitled to share equally in the distribution of the estate, and this is true whether the funds to be distributed are derived from personal property or real estate converted into money. The cases also involve the proposition that the distribution to heirs, legatees or distributees is to be made out of the general assets of the estate, and that the administra- tor or other person charged with such distribution can only retain out of such funds a sum sufficient to pay and satisfy a debt, which such heir, legatee or distributee owes the estate. This may be done, as the authorities hold, to the end that an equal dis- tribution may be made and equity done between the heirs." Weaver v. Gray, Zl Ind. App. 35, 76 N. E. 795. '"' Weaver v. Gray, Zl Ind. App. 35, Id N. E. 795; Holmes v. McPheeters, 149 Ind. 587, 49 N. E. 452. "This recognizes the doctrine that there ex- ists a right to have an equal distribu- tion of the estate between heirs, de- visees and legatees, and for that pur- pose there exists, in equity, a lien and right to have such a portion of an estate, whether real or personal, as goes to the heirs, applied to the payment of a debt due from the heir to the estate. In the case at bar, and in like cases, the estate vested, subject to the rights of the widow, and the testator contemplated an equal distribution of such portion of his estate as remained at the death of the widow between the legatees, share and share alike." New v. New, 127 Ind. 576, 27 N. E. 154. ''Holmes v. McPheeters, 149 Ind. 587, 49 N. E. 452. "The statute of limitation is one of repose, and is only a bar to the remedy, and not to the debt itself, simply leaving it unpaid without any legal remedy on the part of the creditor to enforce 548 INDIANA PROBATE LAW. § 33 1 secured and unsecured debts and his share is not sufficient to sat- isfy all, the executor or administrator has the right to apply the amount of the share retained to the payment of the unsecured debt.^" § 332. The rules of distribution. — The real and personal property of any person dying intestate shall descend to his or her children in equal proportions ; and posthumous children shall inherit equally with those born before the death of the ancestor.""^ This statute vests the title to personal as well as real property in the heirs on the death of the ancestor, subject to be divested on the appointment of an administrator."^ And after such admin- istrator has made a final settlement of the estate, the surplus, re- maining in his hands, is distributed according to the law of de- scent in force at the time of such intestate's death. The common law canons of descent have been excluded in this state by our statute of descents, and degrees of kindred are com- puted according to the rules of the civil law, but the rules of de- scent and distribution are regulated wholly by statute.®^ The term ancestor as used in the statute of descents means any one from whom the estate is inherited.''^ As the statute makes no distinction between heirs, distributees, and next of kin in so far as the rules of descent and distribution its payment by suit, in the event the ''" Sleeper v. Kelley, 65 N. H. 206, debtor relies on the statute as a de- 18 Atl. 718. fense. Measured, however, by a «> Burns' R. S. 1908, § 2990. moral standard, and one in accord " Coldron v. Rhode, 7 Ind. 151; with good conscience, the debtor is Hutson v. Merrifield, 51 Ind. 24, 19 still under an obligation to pay his Am. Rep. 722 ; Weyer v. Second Nat. debt, although a recovery thereon Bank, 57 Ind. 198. under the law may be barred by the "" Murphy v. Henry, 35 Ind. 442 ; lapse of time. The statutes of this Bruce v. Bissell, 119 Ind. 525, 22 N. state recognize the right of a party E. 4, 12 Am. St. 436; Cloud v. Bruce, to enforce a set-off against a cause 61 Ind. 171. of action, although a recovery upon "^ Washburn on Real Property, vol. the debt upon which the set-off is 3, p. 18, § 39; Prickett v. Parker, 3 based is barred by limitation." Ohio St. 394. Holmes v. McPheeters, 149 Ind. 587, 49 N. E. 452. § 332 DISTRIBUTION LEGACIES DISCHARGE. 549 are concerned, the personal estate will pass in the same order as does the decedent's real estate.*''* Every rule of descent or distribution shall be subject to the provisions made in behalf of the surviving husband or wife of the decedent."^ As far as the descent or distribution of the personal estate of a decedent is concerned, the statute provides: If a man die intestate, leaving a widow and a child or children not exceeding two, the personal property of such intestate shall be equally divided among the widow and children, the widow taking one equal share with one child; but if the number of children exceed two, the widow's share shall not be reduced below one-third of the whole. ^'^ The word intestate used in the rules of descent set out herein, refers to property of the estate undisposed of by will, and does not mean that a decedent shall literally die intestate ; that is, not having made any will.*'" And the words "no child," properly construed, mean neither children, grandchildren nor their de- scendants alive. "^ It is said that distribution neither gives a new title to property, nor transfers a distinct right in the estate of the deceased owner, but is simply declaratory as to the persons upon whom the law casts the succession, and the extent of their respective interests."^ The estate of a decedent Avho leaves neither a wife nor child, and no father or mother, is to be distributed to the collateral kindred of such decedent and the next in degree in the order of succession in that kind of a case is the brothers and sisters of the decedent living and the descendants of such as are dead.^*' In case of any brother or sister of such deceased intestate dy- ing before him, the descendants, if any, of such brother or sister, would take the share of the deceased parent per stirpes, that is, " For a detailed treatment of the say. 47 Ind. 283 ; Cool v. Cool, 54 subject of descents, see Title 4, post. Ind. 225. •"Burns' R. S. 1908, § 3012. «nvyle v. Kyle, 18 Ind. 108. "'Burns' R. S. 1908, § 3018. "» Robinson v. Fair, 128 U. S. 53, " Rocker v. Metzger, 171 Ind. 364, 2,2 L. ed. 415, 9 Sup. Ct. 30. 86 N. E. 403; Armstrong v. Berre- '"Burns' R. S. 1908, § 2993. man, 13 Ind. 422; Lindsay v. T ind- 550 INDIANA PROBATE LAW. § 332 all such children take together collectively the share such de- ceased brother or sister would have taken if he had survived the intestate. This rule, however, applies only in those cases where those entitled to take the estate stand in unequal degrees of relationship to the intestate. If all who are entitled to take stand in the same degree of kinship to an intestate they share the estate equally, that is per capita. ^^ If the intestate leaves no wife or child or descendant of chil- dren surviving but leaves a father or mother or both, such parent or parents will be entitled to one-half the estate, and the brothers and sisters of the decedent or their descendants will take the other half. But if there are no brothers or sisters or descendants of them living then the father and mother take the whole estate jointly, or to the survivor if either be dead.'^- The doctrine of ancestral estates, that is to say estates acquired by the intestate by gift, devise, or descent, applies, in this state, to the distribution of personal property as well as to the descent of real estate.'^ In ancestral estates only those having the blood of the ancestor from whom the estate came can inherit. So where there are no persons to take an intestate's estate under the rules already noticed such estate, if ancestral in character will pass in the following order: If such estate came through the paternal line it will go to the paternal grandfather and grand- mother or either of them if living; next to the paternal uncles and aunts and their descendants, but if none in this class survive, then to the next of kin in blood among the paternal kindred. Upon failure of any one in the paternal line capable of inheriting then such estate will pass to those in the maternal in the same order. And this same rule applies to ancestral estates coming through the maternal line, such estates only passing to kin in the paternal line upon failure of heirs of the blood in the maternal line. If the estate is not ancestral in character it is divided be- tween the two lines of kindred in the order above set out.^* "Baker v. Bourne, 127 Ind. 466, 26 " Rountree v. Pursell, 11 Ind. App. N. E. 1078; Blake v. Blake, 85 Ind. 522. 39 N. E. 747. 65 ; Cox V. Cox, 44 Ind. 368. '^ Burns' R. S. 1908, § 2994. "Burns' R. S. 1908, §§ 2992, 2993. § 333 DISTRIBUTION LEGACIES DISCHARGE. 551 If it appears that the estate came to the intestate by gift or conveyance in consideration of love and affection, and no child or descendants of children of the intestate sun-ive him, the estate will revert to the giver of it if living, subject, however, to the rio-hts of the widow or widower of the intestate therein.'^ It is also provided that no person who unlawfully causes the death of another and shall have been convicted thereof, or aids or abets in such unlawful killing, shall take by devise or descent any part of the property, real or personal, owned by the decedent at the time of his or her death.'" § 333. Distribution to the widower.— By the common law the husband by virtue of the marriage became entitled to the personal property of the wife, but the statute changes this rule and now the wife's personal property remains her separate prop- erty." But this statute does not apply to property acquired by the wife in another state." Prior to the amendment of 1891, the statute only applied in terms to such personal property of the wife as was held by her at the time of her marriage, or was ac- quired during the coverture by descent, devise, or gift, and left in force the common-law rule in reference to personal property of the wife not so held or acquired in one of the modes above indicated.'" All property acquired by the earnings of the wife during coverture prior to 1879 was governed by the common-law rule and belonged to the husband.^" In that year a statute was enacted by which a married woman may carry on any trade or business and perform any labor or service on her sole and sep- arate account. And all her earnings and profits accruing to her from any such trade, business, service, or labor, other than labor for her husband or family, become her sole and separate prop- erty.^^ " Burns' R S. 1908, § 2997; Weaver "Smith v. Peterson, 62, I"^. 243^ V Gray, 2,7 Ind. App. 35, 76 N. E. - Abshire v. State, 53 Ind. 64; 795 • Dolin V. Leonard, 144 Ind. 410, Carver v. Carver, 53 Ind. 241. 43 N. E. 568. ^" Yopst v. Yopst, 51 Ind. 61; Jen- "Burns' R. S. 1908, § 2995. kins v. Flinn, Z7 Ind. 349. -Wilkins V. Miller, 9 Ind. 100. "Burns' R. S. 1908, § 7867. 552 INDIANA PROBATE LAW. § 333 That section of the statute which gives to the survivor the entire estate where the husband or wife dies intestate leaving no child and no father or mother, is construed to carr}- within its provisions all undevised estate, the word "intestate" referring to the property and not to the decedent. So where either the hus- band or wife dies testate, leaving no child or father or mother, and the survivor by reason of an election not to take the provision made by the will, becomes entitled to take under the law, and by reason of such election, all or any part of the estate remains undisposed of, such undisposed of estate passes by descent to such surviving wife or husband.^* The right of a husband to a distributive share in the personal estate of a deceased intestate wife is fixed by statute, and the share he takes is really the same she takes in his personal estate on his death intestate. The only difference is found in section 3018, Bums' R. S. 1908, where she takes half if there is only one child living. As against a child or children living, the husband's share in the deceased wife's personal estate never exceeds one- third. ^^ But if the wife die intestate leaving no child, but leaving a father or mother or both, and her entire estate exceeds one thou- sand dollars, the husband takes three-fourths, and if the entire es- tate is worth less than that amount he is entitled to it all ;^* and if there is no father or mother, the whole estate goes to the husband regardless of its value. ^^^ If the wife dies testate the husband may elect to take under the will,**^ and that too, whether any pecuniary provision has been made for him therein or not.*' If a husband shall have left his wife and be living in adultery at the time of her death he will not be entitled to any part of her estate,^^ and if he shall have abandoned her without just cause '= Rocker v. Metzger, 171 Ind. 364, ^'Burns' R. S. 1908, § 3026. 86 X. E. 403; Morris v. Morris, 119 "Burns' R. S. 1908, § 3027. Ind. 341, 21 N. E. 918; Rusing v. *=^ Burns' R. S. 1908, § 3028. Rusing. 25 Ind. 6Z ; Cool v. Cool, 54 ^ Burns' R. S. 1908, § 3026. Ind. 225; Dale v. Bartley, 58 Ind. "'Traudt v. Hagerman, 27 Ind. 101; Waugh V. Riley, 68 Ind. 482; App. 150, 60 N. E. 1011. Hank V. McComas, 98 Ind. 460 ; Col- *^ Burns' R. S. 1908, § 3035 ; Brad- lins V. Collins, 126 Ind. 559, 25 N. ley v. Thixton, 117 Ind. 255, 19 N. E. 704, 28 X. E. 190. E. 335. § 334 DISTRIBUTIOX LEGACIES DISCHARGE. 553 and has failed to make suitable provision for her support he shall take no part of her estate.^® § 334. Kindred of the half blood. — Where brothers and sisters have the same father and mother they are said to be re- lated to each other by the v^hole blood ; but if they have the same father but a different mother, or the same mother but a different father they are related by the half blood. Among collateral kin- dred this difference gives rise usually to some changes in the course of succession to intestate property. In this state though, practically no distinction is made between heirs of the whole blood and those of the half blood. The only distinction is found in ancestral estates and even in these the half blood is only post- poned to those of the whole blood and will take such estates on failure of heirs of the whole blood. ^° The word ancestor as used in this statute has been held to include all from whom a title by descent could be derived under any circumstances, and as synonymous with kindred.''^ And the word kindred as used here must be construed to mean kin- dred of the person last seized of the estate.®- The court says: "We think it should be construed as if it read as follows : Kindred of the half blood shall inherit equally with those of the whole blood; but if the estate shall have come to the intestate by gift, devise, or descent, from any ancestor, those kindred of the half blood only, who are of the blood of such ancestor shall inherit : Provided, That on failure of such kindred of the half blood hav- ing the blood of such ancestor, other kindred of the half blood shall inherit as if they were of the whole blood. ®^ This statute has been held to apply to heirs in the same degree only, so that if there be no brother or sister of either the whole or the half blood of the ancestor, a half-brother not of the blood ^Burns' R. S. 1908, § 3036; Hinton ^ Smith v. Smith, 23 Ind. 202; Ald- V. Whittaker, 101 Ind. 344. ridge v. Montgomery, 9 Ind. 302. ■* Burns' R. S. 1908, § 2996. "' McClanahan v. Trafford, 46 Ind. "Greenlee v. Davis, 19 Ind. 60; 410; Anderson v. Bell. 140 Ind. 375, Barnes v. Lovd. 2,7 Ind. 523. 39 X. E. 735, 29 L. R. A 541n. 554 INDIANA PROBATE LAW, § 335 of the ancestor will take the estate to the exclusion of kindred of the blood of a more remote degree.®* The half-brothers and sisters of an illegitimate intestate will inherit from him where his mother is dead and he leaves no de- scendants."^ § 335. Illegitimates, and adopted children. — Illegitimate children shall inherit from the mother as if they were legitimate, and through the mother, if dead, any property or estate which she would, if living, have taken by gift, devise, or descent, from any other person. '''' The resident illegitimate child of any man dying intestate, leaving no heirs resident in the United States, or legitimate children capable of inheriting, sliall inherit all the real and personal estate of such father provided he has recognized such illegitimate child as his during his lifetime."' And if a man shall marry the mother of an illegitimate child, and acknowledge it as his own, such child shall be deemed legitimate."** Under this last statute a man who marries a pregnant woman and afterwards lives with her as her husband, by so doing makes such child his legitimate heir."" The mother of an illegitimate child dying intestate, without issue or other descendants, shall inherit his estate ; and if such mother be dead, her descendants or collateral kindred shall take the inheritance in the order hereinbefore prescribed.^ A father of an illegitimate child who dies intestate leaving no legitimate children or their descendants surviving him, who has duly acknowledged such illegitimate as his own makes such ille- gitimate his legal heir by such acknowledgment and such child will be entitled to inherit from him." There is provision made by statute in this state for the legal "Pond V. Irwin, 113 Ind. 243, 15 E. 644; Franklin v. Lee, 30 Ind. App. N. E. 272. 31, 62 N. E. 78. " Ellis V. Hatfield, 20 Ind. 101. ' Burns' R. S. 1908, § 3002. ^Burns' R. S. 1908, § 2998. = Burns' R. S. 1908, § 3000;Town- '■ Burns' R. S. 1908, § 2999. send v. Meneley, 37 Ind. App. 127, °' Burns' R. S. 1908. § 3001. 74 N. E. 274. 76 N. E. 321; Daggy ""Bailey v. Boyd, 59 Ind. 292; v. Wells, 38 Ind. App. 27, 76 N. E. Binns v. Dazey. 147 Ind. 536, 44 N. 524. § ^T,6 DISTRIBUTION LEGACIES DISCHARGE. 555 adoption of children who have been born to other parents, and a comphance with this statute makes such adopted child or children members of the family of the person or persons so adopting them, and gives to them the legal status of natural children entitling them to all the rights accorded by law to such natural children including the right of inheritance. The rights growing out of this relation both as affecting the child and the adopting parents are fully discussed elsewhere and will not be entered on in this place.^ Adoption creates a statu,s and whatever the rights of an adopted child as given by the statutes of the state of its adoption, they follow it and are valid in all other states in so far as not inconsistent with the laws and policy of such other state. ^ § 336. Charging advancements.^-The doctrine of advance- ment is invoked to effectuate equality in the distribution of a de- cedent's estate, the presumption being that he intends all his children to share equally, not only in what estate he leaves at death, but in all that came from him. An advancement is said to be a gift from the parent, while in life, of a portion or all of the share of a child in his estate which would come to it under the statutes of descent and distribution. To constitute an ad- vancement the gift must be irrevocable. The ancestor must in his lifetime, divest himself of all interest in the property set apart to the heir." Advancements in real or personal property sliall be charged against the child or descendants of the child to whom the ad- vancement is made in the division or distribution of the estate; but if the advancement exceed the equal proportion of the child advanced, the excess shall not be refunded.'' In the division or 'Chapter XXXIII post. 30 Atl. 467; Gray v. Holmes, 57 Kan. * Estate of Sunderland, 60 Iowa 217. 45 Pac. 596, 33 L. R. A. 207. 732, 13 X. W. 655; Ross v. Ross, 'Joyce v. Hamilton, 111 Ind. 163, 129 Mass. 243, 37 Am. Rep. 321 ; Van 12 X. E. 294 ; Dutch's Appeal, 57 Matre v. Sankey, 148 111. 536, 36 N. Pa. St. 461; Grattan v. Grattan, 18 E. 628. 39 Am. St. 196n, 23 L. R. A. 111. 167, 65 Am. Dec. 726; Johnson 665; Melvin v. Martin, 18 R. I. 650, v. Patterson, 13 Lea (Tenn.) 626. "Burns' R. S. 1908. § 3010. 556 INDIANA PROBATE LAW. § 336 distribution of an estate, the amount or value of an advancement shall be estimated according to the amount or value when given.'' An advancement is a giving by anticipation the whole or a part of what is supposed a child will be entitled to on the death of the parent or the party making the advancement, and to constitute an advance by "settlement or portion of real or per- sonal estate," such settlement or portion must have been so in- tended. It is a question purely of intention. It must have been intended as an advancement and not as a gift, and such intention may be shown by parol proof, and the declarations of the party making the advancement before and at the time of making it, of his intention, are admissible to establish such intention ; however^ in the absence of any statutoiT provision, or any other evidence, to the contrary, the legal presumption is, that the conveyance of real estate and the transfer of personal property to a child by a parent is prima facie an advancement and not a gift, and the question as to whether a conveyance or transfer of property was or was not intended as an advancement is a question of fact proper to be tried by a jury.^ 'Burns' R. S. 1908, § 3011. as trustee, and were never in the *Shaw V. Kent, 11 Ind. 80; Dill- actual possession of said A. Sub- man V. Cox, 23 Ind. 440; Stokes- sequently to the charging of said berry v. Reynolds, 57 Ind. 425; shares against his daughters, the Woolery v. Woolerj', 29 Ind. 249, 95 bank upon the written order of A. Am. Dec. 630; Duling v. Johnson, 32 delivered to one M. all the shares Ind. 155; Stanley v. Brannon, 6 held by said bank for A., as trustee, Blackf. (Ind.) 193; Harness v. Har- including the shares charged against ness, 49 Ind. 384; Dille v. Webb, 61 his daughters. M. sold all of said Ind. 85; Scott Intestate Law, p. 543. shares and invested the proceeds A. charged certain shares of mining thereof in other mining stocks. Aft- stock which he had purchased erward, upon the order of A., M. against two of his daughters. He borrowed money upon the shares last also charged them with assessments purchased for the purpose of mak- made on said stock from time to ing, and did make, additional pur- time, and paid by him, and credited chases of mining stock. The stocks them with the amount of a dividend thus pledged for loans, and those on said stock, received by him and purchased with the borrowed money, paid by him to them. These shares, were afterward sold by the pledgees together with other shares, were held to pay for the loans, and nothing was by the Bank of California for the realized over and above the amount account and in the name of said A., of said loans. No shares of stock § 336 DISTRIBUTION LEGACIES DISCHARGE. 557 An advancement of money or other property from a parent to a child, as a general rule, is a question of intention on the part of the parent, and although it may have been considered and treated by the parent as a debt from the child, yet the parent has a right at any time during life to change a debt into an advancement.'-* Whenever it becomes necessaiy, in a case involving a question of advancement, to ascertain from the surrounding circumstances the intention with which a donor conveyed property, so long as there is no satisfactory evidence to the contrary, the law looking to the relationship and rights of others will ascribe to the donor that intention most favorable to an equal distribution of his prop- erty among all his children, and when there is no satisfactory evidence of what occurred at the time the conveyance was made, and the papers connected with the transfer do not determine the character of the transaction, the surrounding circumstances are to be looked to in ascertaining whether it ought to be considered as an advancement or otherwise/" were ever delivered to either of said daughters, nor did they ever have the possession of or exercise any control over the same, or have any- thing to do with the disposition of said stock. Held, that the shares of stock so charged against said daugh- ters could not, in the settlement of the father's estate, be considered as an advancement to them. Herkimer V. McGregor, 126 Ind. 247, 25 N. E. 145, 26 N. E. 44. 'Baum V. Palmer, 165 Ind. 513, 76 N. E. 108. '"Ruch V. Biery, 110 Ind. 444, 11 N. E. 312; Parks v. Parks, 19 Md. 323; Clark v. Willson, 27 Md. 693; Herkimer v. McGregor, 126 Ind. 247, 25 N. E. 145, 26 N. E. 44. The ques- tion as to whether a conveyance or transfer of money or property to a child is to be regarded as a gift or an advancement, is to be determined by the intention of the parent. In an action by the daughter to quiet title, evidence of declarations made by her father previous to the time she took possession, showing an in- tention different from that asserted in the plaintiff's behalf, is admissible. Joyce V. Hamilton, 111 Ind. 163, 12 N. E. 294; Thistlewaite v. Thistle- waite, 132 Ind. 355, 31 N. E. 946. Where, by the direction, and with the consent of the owner, his daughter and her husband enter into the pos- session of a tract of land, and with his knowledge make lasting and valu- able improvements, it being the father's intention that they shall re- side thereon during his life, receive the proceeds, keep up repairs and pay taxes, and at his death the daughter to take a life-estate, with remainder to her children, there is no advance- ment, and the ancestor may make a different disposition from that in- tended. Fiscus V. Moore, 121 Ind. 558 INDIANA PROBATE LAW, § 33^ As evidence of the donor's intention proof of his declarations on the subject at or near the time when the money or other prop- erty was turned over to the child may be made." The presumption is that a conveyance of land made voluntarily by a father to his child is intended to constitute an advancement and the burden is upon the child to show that it was not.^- But a deed made upon sufficient money consideration stated therein does not raise such a presumption/^ The acceptance by an heir of a note from the ancestor indorsed "being the share of my estate I intend her to have," and specify- ing that it is an advancement to the heir, does not bar the heir from a share in the estate at the ancestor's death, nor show any release by such heir of all rights and claims on the estate. ^^ 547, 23 N. E. 362, 7 L. R. A. 235. A mere secret intention of the father, to treat the money paid as a debt, would not be effectual as against the son nor as against his creditors to overcome the presumption that it was to be an advancement. Higham V. Vanosdol, 125 Ind. 74, 25 N. E. 140. An advancement, in legal con- templation, is the giving bj' a parent to a child, by way of compensation, of the whole or a part of that which ment between the father and the son in order to constitute money paid by the former for the benefit of the lat- ter an advancement, but in order that money so paid should constitute a debt, the contemporaneous facts and circumstances must make it ap- pear that it was understood and in- tended at the time to be a debt. Hig- ham V. Vanosdol, 125 Ind. 74, 25 N. E. 140. Where a mother conveys land to her son, who gives notes it is supposed the child will be en- secured by a mortgage for the pay- titled to on the death of the parent or person making the advancement. Ruch v. Biery, 110 Ind. 444, 11 N. E. 312; Daugherty v. Rogers, 119 Ind. 254, 20 N. E. 779, 3 L. R. A. 847n. A voluntary conveyance of land by a parent to one of his children is presumed to have been intended as an advancement, and the burden of showing that it was not so intended rests upon the person who asserts it to be aything else. Joyce v. Hamil- ton, 111 Ind. 163, 12 N. E. 294; Hig- ham V. Vanosdol, 125 Ind. 74, 25 N. ment of the price after her death to her other children and to her grand- children, his share as heir to be de- ducted therefrom, the transaction operates as an advancement. Brun- son V. Henrv, 140 Ind. 455, 39 N. E. 256. " Hinshaw v. Security Trust Co., — Ind. App. — , 93 N. E. 567. " Stauffer v. Martin, 43 Ind. App. 675, 88 N. E. 363. " Newell V. Newell, 13 Vt. 24 ; Ki- ger V. Terry, 119 N. Car. 456, 26 S. E. 38; Stauffer v. Martin, 43 Ind. E. 140; Scott v. Harris, 127 Ind. 520, App. 675, 88 N. E. 363. 27 N. E. 150. It is not necessary " Binns v. Dazey, 147 Ind. 536, 44 that there should have been an agree- N. E. 644. § ^T^y DISTRIBUTION LEGACIES DISCHARGE. 559 The heir may contract to pay interest on an advancement, akhough ordinarily interest will not be charged upon advance- ments. The agreement to pay interest during the lifetime of the donor does not convert the advancement into a debt. An ad- vancement is not to be treated as borrowed capital drawing inter- est. One of its incidents is that it shall be valued as of the date when it was received, but it is not to be considered and settled until after the death of the ancestor regardless of when it was made.^^ § 337. Advancements, how^ reckoned, the statute. — If any child or other lineal descendant of a deceased person shall have been advanced by the deceased, by settlement or portion of real or personal estate, the value thereof shall be reckoned with that part of the surplus of the personal estate which shall remain to be distributed among the children ; and if such advancements be equal or superior to the amount which would be distributed to such child as his share of such surplus and advancement, then such child or descendant, or those representing either of them, shall be excluded from any share in the distribution of such sur- plus. But if such advancement be not equal to such amount, such child or descendant, or those taking as their representatives, sliall be entitled to receive so much only as shall be sufficient to make all the shares of all those entitled to be equal as near as can be estimated.^" The maintaining, or educating, or giving money to a child, without a view to a portion or settlement in life shall not be deemed an advancement within the meaning of the last preceding section." " Slaughter v. Slaughter, 21 Ind. lowed her by law, and the debts and App. 641, 52 N. E. 994; Moale v. expenses of administration, the sur- Cutting, 59 Md. 510; Osgood v. plus and the advancements are to be Breed's Heirs, 17 Mass. 356; Miller's aggregated, and the shares of the Appeal, 31 Pa. St. 2>2,7. children equalized as nearly as may "Burns' R. S. 1908, §2929; Barnes be under the several provisions of V. Allen, 25 Ind. 222. The widow the statute on that subject. Ruch v. is excluded from participation in Biery, 110 Ind. 444, 11 N. E. 312. advancements. After she receives "Burns' R. S. 1908, § 2930; Willetts one-third of what remains, after v. Willetts, 19 Ind. 22; Ruch v. Biery, paying the five hundred dollars al- 110 Ind. 444, 11 N. E. 312. If a 56o INDIANA PROBATE LAW § Zi7 The subject of advancement is, in this state, regulated exclu- sively by statute, and under the statute there can be no such thing as an advancement to a husband or wife. Advancements are confined to children and their descendants. Advancements are not part of the personal estate of a decedent; therefore, after paying the debts and expenses of administration, and giving to the widow the absolute allowance made her by law and one-tliird of what remains, the surplus and advancements are to be aggre- gated, and the shares of the children equalized as nearly as may be, according to the provisions of the above statute. But one who has received by way of advancement more than his share of the estate cannot be required to refund any part for the purpose of equalizing the shares of the others.^* While the question of advancements may be determined in a proceeding to partition a decedent's real estate, yet, as this statute makes the personal estate the primary fund from which advance- ments should be equalized, such personal estate, if sufficient, transaction between father and son amounts to an advancement at the time it takes place, it cannot after- ward be converted into a debt with- out the intervention of some new consideration. Higham v. Vanosdol, 125 Ind. 74, 25 N. E. 140. Money borrowed from the estate by an heir may be treated as an advancement in an action brought by the heirs for a portion of the decedent's estate after the estate is settled. New v. New, 127 Ind. 576, 27 N. E. 154. Where a father furnishes money to his son, and purchases land, and causes it to be conveyed to his son without any contemporaneous understanding or agreement concerning the repayment of the purchase-money, no resulting trust arises, nor does the son pre- sumably become the debtor of his father. The presumption is that the amount paid was an advancement from the father to the son, and the burden of proof is upon the party who asserts that it is something else. Iligham v. Vanosdol, 125 Ind. 74, 25 X. E. 140. ''Where a will shows that it was the intention of the testator to make an equal distribution of his estate, and some of the distributees have re- ceived more than the others, the lat- ter are entitled to a sum sufficient to put them on an equal footing with the former, with interest thereon, in addition, from the date of the testa- tor's death until payment made, if there are sufficient assets for that purpose left after the payment of the debts of the deceased and the costs of administration; but the dis- tributees who have received greater amounts than their co-distributees cannot be made to refund in order to bring about such equalization. Clark V. Helm, 130 Ind. 117, 29 N. E. 568, 14 L. R. A. 716n. §337 DISTRIBUTION LEGACIES DISCHARGE. 56 1 should first be resorted to for that purpose so as to leave the real estate unburdened." A father may make advancements to his daughter by paying for land and having the same conveyed to her husband,"" and this even without the knowledge or consent of the daughter and no trust is thereby created in the husband for her benefit.^^ Where advancements have been made an equal distribution of the estate cannot be made by the administrator until such ad- vancements have been brought into hotchpot, and in this state, whether such advancement has been made in real or personal estate, its value shall be reckoned with that part of the personal estate remaining for distribution, excluding the distributive share of tlie widow or widower, the doctrine of advancements applying onlv to children and lineal descendants of the decedent. Bringing into hotchpot means that the advancements made, taken at their value at the time they were made, must be added to the total amount in hand for distribution to children and lineal descendants, and this total divided by the number of distributive shares going to the children and such descendants. This fixes the amount of each distributive share. Then from the shares of those advanced shall be deducted the value of the particular advance- ment. To bring into hotchpot does not mean that the party advanced shall return the property received in kind, or even that he shall relinquish his interest therein, but only that its value shall be reckoned against him in the distribution. In no instance can the party be compelled to refund what he has received, but unless he consent to bring it into hotchpot and take his share upon an equal division of the estate, he will not be entitled to participate in the distribution. •- The party advanced having his choice whether to keep what he has and relinquish his claim to more, or to come into hotchpot. "Barnett v. Thomas, 36 Ind. App. =' Meredith v. Meredith, 150 Ind. 441. 75 N. E. 868, 114 Am. St. 385. 299. 50 N. E. 29. =" Lewis V. Stanley, 148 Ind. 351, " Grattan v. Grattan, 18 111. 167, 65 45 X. E. 693. 47 N. E. 677; Heath v. Am. Dec. 726; Jackson v. Jackson, Carter, 20 Ind. App. 83, 50 N. E. 318. 28 Miss. 674, 64 Am. Dec. 114; 36 — pp.0. L.wv. ^62 INDIANA PROBATE LAW. § 338 has the right to wait before choosing until the vaUie of the estate has been determined."^ § 338. Advancements in testate estates. — As a general rule where one dies testate the doctrine of advancements does not apply, even in cases where the will does not dispose of the entire estate.-* And though the testator may have made advancements before making his will, they will not be charged against the donee unless so provided in the will," it being said, "It is true that when a will is made all previous advancements are ex- tinguished unless the same are saved by the will ; and this is held upon the ground tliat the testator has graduated his legacies with reference to such prior advancements."*'^ But when a testator provides in his will that his proj^erty shall descend the same as if he had made no will, that is, as though he had died intestate, prior advancements are to be taken into account in this division of his estate."' And where he directs cer- tain gifts, or loans he may have made to be deducted to equalize the shares of legatees or devisees, they must be treated as ad- vancements, though they would not have constituted advance- ments had the testator died intestate." The distinction between advancements and the ademption of legacies must not be lost sight of. It is explained as follows : "Where one in loco parentis gives a legacy as a portion, and afterwards advances in the nature of a portion to the same person, such advancement is presumably an ademption of the legacy; but a gift before the making of the IMarston v. Lord, 65 N. H. 4, 17 Atl. 88 Mo. Z2,7 ; Trammel v. Trammel, 980; Taylor v. Reese, 4 Ala. 121. 148 Ind. 487, 47 N. E. 925. "'Knight V. Oliver, 12 Gratt. (Va.) =« Trammel v. Trammel, 148 Ind. ZZ; Earnest v. Earnest, 5 Rawle 487, 47 N. E. 925. (Pa.) 213. ='Raiford v. Raiford, 6 Ired. Eq. "Green v. Speer, Z7 Ala. 532; (N. Car.) 490; Stewart v. Stewart, Biedler v. Biedler, 87 Va. 300, 12 S. 15 Ch. Div. 539; Trammel v. Tram- E. 753 ; Huggins v. Huggins, 71 Ga. mel, 148 Ind. 487, 47 N. E. 925. 66. =^* Porter's Appeal, 94 Pa. St. 332; "■^ Jones V. Richardson, S Mete. Black v. Whitall, 9 N. J. Eq. 572, 59 (]\Iass.) 247; Camp v. Camp, 18 Am. Dec. 423; Darne v. Lloyd, 82 Hun (X. Y.) 217; Turpin v. Turpin. Va. 859, 5 S. E. 87, 3 Am. St. 123. 339 DISTRIBUTION LEGACIES DISCHARGE. 563 will, not charged therein as an advancement, cannot be so treated in the distribution of the estate."^® A testamentary direction for the deduction of a debt from a legacy cannot be avoided by the legatee by showing that the testa- tor was mistaken as to the existence of the debt, or as to the amount of it.^° Nor can the recitals in a will as to advancements be disputed.''^ Xor can parol evidence be heard to show that an advancement was intended as an ademption of a legacy.^- § 339. As to the order of distribution. — The filing of a final settlement account by an executor or administrator confers juris- diction upon the court to hear and determine all matters pertain- ing or incidental to the final settlement of the estate. No other petition or pleading than the final report filed is necessary to give the court jurisdiction of the distribution of the surplus. Such jurisdiction results as an incident to the final settlement, and the hearing of claims to the surplus of an estate is usually a very summary and informal proceeding. Issues may be formed upon adverse claims of that character, but in a jurisdictional sense it is not necessary that they should be.^' Where an application is made for an order upon an administrator to pay over a sum of money out of a fund which remains in his hands for distribution, to one who claims as a distributee, no jury is allowable. Such a proceeding is regarded as equitable in its nature, the court having the authority to take into account any proper matter of set-off, such as advancements, or the like, which ought to be deducted from the share of a distributee.'* In the case of conflicting claims to a distributive share of an estate in the hands of the clerk of the court, it becomes the duty of the court to determine to which of the claimants the money should be paid, and a large discretion is ^Woerner .\m. Law Admin.,§ 553. "Jones v. Jones, 115 Ind. 504, 18 '" Estate of Eichelberger, 135 Pa. X. E. 20. St. 160, 19 Atl. 1006. " Sherwood v. Thomasson, 124 " McAlister v. Butterfield, 31 Ind. Ind. 541, 24 X. E. 334. When, upon 25. the settlement of an estate, there is ""Clendening v. Clymer, 17 Ind. money in court for distribution, a 155. petition filed by a claimant thereof, 564 INDIANA PROBATE. LAW. § 339 allowed such court in hearing all the facts and circumstances in reference to the matter in controversy.^^ On a petition for distribution, all who are interested in the estate should be made parties, and the action of the court upon such petition is summary. No formal pleadings are required, no issues necessary, the matter being heard by the court without the intervention of a jury.^*' And upon such hearing, the final report of the administrator, setting out the names of the heirs and distributees, and the share of each in the fund, is prima facie proof of heirship and the amount due." The law in force at the death of the decedent governs the distribution of the estate in the hands of his administrator.^^ Where administration on the same estate is pending in two jurisdictions, the assets in one should be used to pay the cred- itors in that jurisdiction, before any surplus can be ascertained for distribution in the other. The domiciliary jurisdiction con- trols the final distribution.^" Where a distributee is a minor, his legal guardian is the only proper person to receive his distributive share of an estate. It is error to pay such share to one acting as attorney or agent for such minor, for the reason that a minor is not competent to ap- point an agent or attorney for such purpose.*" And when an which shows that he is entitled there- al sense it is not necessary that they to, ought not to be struck out. Rob- should be. erts V. Huddleston, 93 Ind. 173. '' Beal v. State, 77 Ind. 231. "' Roberts v. Huddleston, 93 Ind. ^ Brown v. Critchell, 110 Ind. 31, 173. 7 N. E. 888, 11 N. E. 486. The court ''Henson v. Ott, 7 Ind. 512; Mur- saying in this case, "It is also a well phy V. Tilly, 11 Ind. 511; Tapley v. accepted legal proposition, that all McGee, 6 Ind. 56; Jones v. Jones, the property of a deceased person 115 Ind. 504, 18 N. E. 20; Sherwood descends, or is otherwise disposed V. Thomasson, 124 Ind. 541, 24 N. E. of, according to the law in force at 334. Jurisdiction over the subject the time of his death, except in so results as an incident of the final far as he may have made a dift'erent settlement, and the hearing of claims provision by his will." to the surplus of an estate is usually "" Spraddling v. Pipkin, 15 Mo. a very summary and informal pro- 118; In re Welles Estate. 161 Pa. St. ceeding. Issues may be formed upon 218, 28 Atl. 1116; Prentiss v. Van adverse claims, but in a jurisdiction- Ness, 31 Vt. 95. '"Tapley v. McGee, 6 Ind. 56. § 339 DISTRIBUTION LEGACIES DISCHARGE. 565 executor or administrator is also guardian of a distributee of the estate, he may pay to himself, in the one capacity, money he holds in the other capacity. Where such two-fold relation exists, the rule is that after the time limited for the settlement of an estate the court will adjudge the ward's proportion of the property of such estate to be in the executor's or administrator's hands in his capacity as guardian.^^ Where a distributee is an infant under guardianship, the name of the guardian should be stated in the order of distribution, and a payment to such guardian will release the administrator.^^ The court, upon hearing of the proof, shall order the distribu- tion by the clerk, executor or administrator among the parties applying and proving their titles to their respective shares in such surplus, and if any surplus remains undistributed, it shall be paid into and retained in court until such persons as shall not have applied and proved their interest in such surplus shall ap- pear as aforesaid and make such proof, when further distribution shall be ordered by the court. If it shall appear to the court that any person claiming an interest in such surplus is an infant or of unsound mind, and has no guardian, the court may appoint a guardian ad litem to appear for such person and protect his in- terest in the distribution of such surplus.^^ An executor or administrator should only make distribution of the surplus of an estate under order of the proper court. If he pays out the money of the estate, or otherwise parts with the '' Burtch V. Thorn, 7 Ind. 508. tion need not aver that she had not ^ Sankey v. Sankey, 6 Ala. 607; abandoned her husband and was not Henry v. State, 9 Mo. 778; Hinckley living in adultery at his death. Sher- V. Harriman, 45 Mich. 343, 7 N. W. wood v. Thomasson, 124 Ind. 541, 24 907, N. E. 334. An application for dis- *^ Burns' R. S. 1908, § 2931. In de- tribution of the surplus of an estate termining to whom money paid into is not triable by jury. Sherwood v. court for distribution belongs it is Thomasson, 124 Ind. 541, 24 N. E. proper to consider the amount each 334. A widow of a decedent is a heir may have received. Roberts v. competent witness on an application Huddleston, 93 Ind. 173. A petition for a distribution of the surplus of by a widow for payment to her of an estate. Sherwood v. Thomasson, her share of an estate for distribu- 124 Ind. 541, 24 N. E. 334. 566 INDIANA PROBATE LAW, § 339 assets, to the distributees, on his own responsibility, and thereby leaves insufficient means in his hands for the necessities of the estate, he is guilty of waste, and is not entitled to relief." A distributee is a person who is entitled under the statutes of distribution to the personal estate of one who has died intestate, or to a share of the same." The order of distribution should in- dicate to whom the distributive shares should be paid, and if the order is made after due notice, it will protect the administrator in making payments according to the directions in the order,"*® And a bona fide payment made under such order to an as- signee, or attorney in fact of a distributee named in the order, is a sufficient compliance with the order. ^' The order of distribution is not a payment, nor until actual payment to those entitled is the administrator discharged, or the fund in his hands exonerated. Under the order, the distributee has his remedy for the share due him, either against the personal representative, or the fund itself. Nothing short of an actual payment of some sort will relieve the fund from his claim. ^'^ The distributive share of one, deposited with the court upon the death of such person, should be paid to the executor or ad- ministrator of such distributee, and not to his heirs.*® The order of distribution should not direct the administrator to apply the share of a distributee to the payment of a debt due to him from the distributee.^" "Egbert v. Rush, 7 Ind. 706; Mc- Redf. (N. Y.) 461; Appeal of Lex, Clure V. McClure, 19 Ind. 185. See 97 Pa. St. 289. Stokes V. Goodykoontz, 126 Ind. 535, '' Clapp v. Meserole, 38 Barb. (N. 26 N. E. 391. Y.) 661; Pollock v. Buie, 43 Miss, *" Henry v. Henry, 9 Ired. L. (N. 140; McCracken v. Graham, 14 Pa, Car.) 278. St. 209. ^'Harlow v. Harlow, 65 Me. 448; *" Turner v. Campbell, 34 Ind. 317. Sparhawk v. Buell, 9 Vt. 41 ; Sanders '" Kidd v. Porter, 13 Ala. 91 ; Stand- V. Loy, 61 Ind. 298. The final settle- ley v. Langley, 25 Miss. 252. An ad- ment is a judicial proceeding, a judg- ministrator is liable to garnishment ment of a court of record having ju- by a creditor of a legatee or distribu- risdiction over the subject-matter and tee of the estate, and the unascer- the parties, and therefore cannot be tained share of such debtor may thus attacked collaterally. be applied to the payment of the " Tillson V. Small, 80 Me. 90, 13 debt, and an order for payment there- Atl. 402; Marshall v. Hitchcock, 3 of binds a subsequent administrator § 340 DISTRIBUTION LEGACIES DISCHARGE. 567 A judgment of the court setting aside an order of distribution, is not a final judgment from which an appeal will lie.'' § 340. As to shares of minors without guardian. — That where there is now in or hereafter may come into the hands of the clerk of any court in this state, money due to any minor in an amount not exceeding one hundred dollars, and said minor is without a guardian, said minor by his petition without the inter- vention of a guardian ad litem, and without a next friend, may in his own name, make application in writing to the judge of said court asking an order directing said clerk to pay said money direct to said minor and said judge, if satisfied that it will be to the benefit of such minor to have said money so paid to said minor, the court shall make its order directing its clerk to pay to said minor said sum of money or any part thereof and the receipt of said minor to the clerk will be a sufficient voucher to the clerk and he shall be discharged and released from all liability thereon for any sum or all of said money so paid such minor.'' Any receipt given to any clerk for money paid as provided in the foregoing section shall be binding upon such minor, his heirs or assigns.'^ Whenever any sum of money, not exceeding one thousand dollars, shall be paid into any court in this state for the use of any minor or insane person, and there shall be no guardian qualified to receive and receipt for the same, the court may, in its discretion, order such sum of money to be deposited in any sav- ings bank organized under this act, to the credit of any such minor or insane person ; and such sum, and the dividends there- on, shall not be withdrawn from such savings bank except upon so that he cannot, in the settlement must be made the basis of a claim of his trust, take credit for payment against his estate, and cannot be con- thereof to such distributee or legatee, sidered in a proceeding to distribute Simonds V. Harris, 92 Ind. 505. An the estate. Carroll v. Swift, 10 Ind. agreement by a husband with his App. 170, Z1 N. E. 1061. wife, that if she would join him in "Wood v. Wood, 51 Ind. 141. deeds of conveyance to his real es- '""■ Burns' R. S. 1908, § 2932. tate he would allow her at his death "' Burns' R. S. 1908, § 2933. one-third of all his personal property, 568 INDIANA PROBATE LAW. § 34I the order of said court, or until a guardian shall have been law- fully appointed for such minor, or until the disability of such insane person shall be declared to be removed by some compe- tent court, or a guardian shall have been appointed.''* § 341. Court may order bond to refund. — In making such order of distribution the court may require of the distributees respectively, before receiving their shares, to file in the office of such clerk a bond with sufficient surety payable to the state of Indiana, to be approved by the court or clerk, conditioned for the refunding of their ratable proportions of the estate to any heir who may afterwards appear ; but no heir shall bring suit on such bond unless he was a minor, insane, or a non-resident of this state at the time of such distribution. °^ The statute requires a legatee or distributee to give bond, con- ditioned to refund his ratable proportion of the estate if neces- sary, but the failure of the executor or administrator to take such bond will not release the legatee or distributee from his liability to refund when necessary for the payment of debts, legacies or claims.^® An administrator who makes distribution without judicial di- rection is personally liable to distributees of whose existence he had no knowledge. ^^ The bond provided in this statute, however, is only for the benefit of persons under disabilities. § 342. Payment before final settlement. — Any person en- titled to any legacy, or to a distributive share of the estate of any " Burns' R. S. 1908, § 3400. bond, as required, for the return of °° Burns' R. S. 1908, § 2934. Heirs the money distributed, in case it is or legatees may be liable to refund needed to pay debts, is an informality what they have received for the pay- which will not, in the absence of any ment of debts although no bond is reasonable objection, invalidate the executed. Smith v. Smith, 76 Ind. judgment as to the parties in court. 236. Chapell v. Shuee, 117 Ind. 481, 20 N. '"Smith V. Smith, 76 Ind. 236; E. 417. Stokes V. Goodykoontz, 126 Ind. 535, " Lawrason v. Davenport, 2 Call 26 N. E. 391. The failure of the (Va.) 95. court to require the heirs to give 342 DISTRIBUTION LEGACIES DISCHARGE. 569 deceased person, may at any time previous to the settlement of such estate apply to the court, either in person or by guardian, after giving reasonable notice to the executor or administrator, to be allowed to receive a portion of such legacy or distributive share. ^^ If it appear to the court that there be at least one-third more of assets in the hands of such executor or administrator or in court than will be sufficient to pay all debts and legacies against the estate then known, such court may, in its discretion, allow such portion of such legacy or distributive share to be advanced as it may deem proper, upon satisfactory bond being executed to such executor or administrator, with sufficient penalty and surety for the return of any portion, with interest whenever necessary, for the payment of debts, legacies or claims, or to equalize the share and legacies among those entitled thereto."^ As a rule the heirs are not, as a matter of right, entitled to distribution until after the payment of the debts and the settle- ment, and under the above statute, unless the assets of the estate exceed by one-third the known debts and legacies against the estate, the court ought not to require the money to be distributed in advance.**" The failure to require a bond is an informality, and does not release the legatee from liability to refund when necessary.^^ ''Burns' R. S. 1908, § 2902. In an him is not equal to the amount al- application under this section the lowed by law as exempt from execu- court may inquire into advancements tion. Fiscus v. Fiscus, 127 Ind. 283, made to heirs by the decedent. 26 N. E. 831. Chapell V. Shuee. 117 Ind. 481, 20 N. ""Hayes v. Matlock, 27 Ind. 49; E. 417. If money is voluntarily ad- Moore v. State, 49 Ind. 558; Chan- vanced to distributees without an or- dler v. Morrison, 123 Ind. 254, 23 N. der of court it cannot be recovered E. 160. back. Egbert v. Rush, 7 Ind. 706. "Chapell v. Shuee, 117 Ind. 481, 20 See Smith v. Smith, 76 Ind. 236. X. E. 417; Smith v. Smith, 16 Ind. '"Burns' R. S. 1908, § 2903. A dis- 236; Stokes v. Goodykoontz, 126 Ind. tributee, against whom the adminis- 535,26 N. E. 391; Mazelin v. Rouyer, trator holds an unsatisfied judgment 8 Ind. App. 27, 35 N. E. 303. Under for a sum greater than the distribu- the provisions of the statute the cir- tee's distributive share, is not entitled cuit court may, in its discretion, upon to such share, although, being a a proper petition, at any time previ- householder, the property owned by ous to the settlement of an estate, al- S7^ INDIANA PROBATE LAW. § 343 No formal pleadings are necessary under this last statute to secure the partial distribution there provided for. The applica- tion is a summary one and is addressed to the discretion of the court, and should be granted only in a clear case. A partial dis- tribution, in advance of the final settlement of the estate is not allowed as a matter of right. The condition of the estate can generally be approximately ascertained by the court from the re- port of the executor or administrator, and unless the assets ex- ceed by one-third the known debts and legacies, the court ouglit not to order such advance payment to distributees, and even upon a proper application no distribution should be ordered except upon the filing of the bond required by this statute."- The bond provided for in the above statute rests upon a valu- able consideration, and is enforcible.®^ § 343. The payment of legacies. — A legacy is a gift of per- sonal property made by will, and may be either specific or gen- eral. A general legacy embraces pecuniary gifts, as such gifts as are measured by quantity merely, while a specific legacy is a gift of some particular property so described as to be identified and distinguished from all other of its kind ; and such legacy can only be satisfied by the delivery to the legatee of the identical thing bequeathed, and if it is not to be found among the tes- tator's effects the bequest fails.^* The payment of legacies is postponed to the payment of all low a partial distribution to heirs of or other jurisdictional facts; but the moneys in the hands of the executor facts showing want of jurisdiction in or administrator; and in such pro- the court to act upon the petition ceedings it has jurisdiction to ascer- must be brought forward by answer, tain the amount of advancements Chapell v. Shuee, 117 Ind. 481, 20 N. made by the decedent. A petition in E. 417. the circuit court, by an administrator ^- Hayes v. Matlock, 27 Ind. 49 ; and heirs, asking the ascertainment Chapell v. Shuee, 117 Ind. 481. 20 of advancements and an order for N. E. 417; Miller v. Duy, 36 Ind. partial distribution of funds in his 521 ; Tapley v. McGee, 6 Ind. 56. hands, is not bad because it is silent °^ Chandler v. Morrison, 123 Ind. upon the subject of the decedent's 254, 23 N. E. 160. domicile, the issuing of letters of ad- '"'* Williams Exrs., 993-4; Roquet v. ministration, the location of property Eldridge, 118 Ind. 147, 20 N. E. 72,2,. 343 DISTRIBUTION LEGACIES DISCHARGE. 5/1 the testator's debts. The claims of all creditors must be first dis- charged. Then if there be assets of the estate left sufficient for that purpose, the legatees are entitled to satisfaction of their be- quests. If the legacies cannot all be satisfied, owing to insuffi- cient assets, the law usually directs a certain order in which they shall abate. The statute provides that after the expiration of one year from the granting of letters, the executor or adminis- trator may, if the estate be solvent, discharge the specific legacies and pay the general legacies bequeathed by any will if there be sufficient assets; and if there shall not be sufficient assets to pay the general legacies, then an abatement thereof shall be made in proportion to the amount of each."^ It is the duty of an executor or administrator with the will annexed, after paying all the debts of the estate and the expenses of the administration, to pay the legacies provided in the will of the testator,*'* and there can be no distribution until such legacies are paid. The executor or administrator, with the will annexed, is the proper person to pay a legacy, and for a failure to pay it he may be sued upon his bond, and such suit may be maintained without any previous order of court directing the payment of the legacy, and without the removal of the officer from his trust previous to the commencement of the suit; but no such suit will lie until after the estate is finally settled and it is ascertained that the legacy will not be needed for the purposes of the estate. A demand for its payment or delivery should then be made by the legatee previous to bringing the suit." "^^ Burns' R. S. 1908, § 2904; Rogers '"Crist v. Crist, 1 Ind. 570, 50 Am. V. State, 26 Ind. App. 144, 59 N. E. Dec. 481n; Heady v. State, ex rel, 334. ' 60 Ind. 316; Highnote v. White, 67 "•Burns' R. S. 1908, § 2901, 8th Ind. 596; Gould v. Steyer, 75 Ind. 50; clause. A debt due the estate from Fillingin v. Wylie, 3 Ind. 163. An a legatee may be retained out of his executor may recover from a legatee distributive share of the surplus pro- or heir money that is improperly paid ceeds of the estate and applied to the to him on an erroneous estimate as payment of a debt due the estate to the amount due. Smith v. Smith, from such heir, although such indebt- 76 Ind. 236 ; Stokes v. Goodykoontz, edness arose after the death of the 126 Ind. 535, 26 N. E. 391. decedent. New v. New, 127 Ind. 576, 21 N. E. 154. 572 INDIANA PROBATE LAW. § 344 The right to a legacy is fixed by will, and the executor is not, as a rule, bound to pay it until all the debts of the estate have been paid. He does no wrong to the legatee in delaying payment until then, and unless in the wrong no action will lie against him for the allowance and recovery of the legacy. In such action it is necessary for the complaint to show a payment of all the debts, that the executor has placed himself in the wrong by denying the legatee's claim after demand, and that there is a reason for ap- pealing to the court to establish the legacy."^ Where all of a testator's property is disposed of by his will, there can be no surplus for distribution under the statute. The surplus remaining after the payment of debts and specific lega- cies passes to the residuary legatees as such, and not to the heirs.«° After paying all the debts of the estate and the legacies pro- vided for in the will, the executor should deliver what remains of the estate in his hands to the residuary legatee, if one is provided in the will, otherwise that portion of the estate will pass as in- testate and must be distributed to the heirs and next of kin. § 344. Legatee's title, executor's consent. — The title of a legatee to his legacy is not perfected until its payment or delivery to him by the executor, and he cannot take legal possession of it until he has obtained the consent of the executor.'" The doc- trine of the law is thus stated in a leading work: ''The whole personal property of the testator devolves upon his executor. It is his duty to apply it, in the first place, to the payment of the •** Heady v. State, 60 Ind. 316; quire whether the remedy is at law Story Eq., § 555. In Fickle v. Snepp, or in equit}', for if facts are stated 97 Ind. 289, 49 Am. Rep. 449n, the warranting a recovery, a recovery court says : "The English rule is that will be awarded, no matter whether a legacy cannot be recovered in an the case made is cognizable in equity action at law, but may be inforced or at law." by a suit in equity. The American ^^ Branch v. Holcraft, 14 Ind. 237. cases are not harmonious, but there '" Crist v. Crist, 1 Ind. 570, 50 Am. are very many in favor of the rule Dec. 481n ; Leach v. Prebster, 35 Ind. that an action at law will lie for the 415; North-Western Conference v. collection of a legacy. Under our Myers, 36 Ind. 375. statute it cannot be important to in- § 344 DISTRIBUTION LEGACIES DISCHARGE. 573 debts of the deceased ; and he is responsible to the creditors for the satisfaction of their demands, to the extent of the whole estate, without regard to the testator's having, by the will, di- rected that a portion of it shall be applied to other purposes. Hence, as a protection to the executor, the law imposes the neces- sity that every legatee, whether general or specific, and whether of chattels real or personal, must obtain the executor's consent to the legacy before his title as legatee can be complete and perfect. Hence, also, the legatee has no authority to take possession of his legacy without such assent, although the testator, by his will, expressly directed that he shall do so ; for if this were permitted, a testator might appoint all his effects to be thus taken in fraud of his creditors. It follows from the rule respecting the neces- sity of the executor's assent, that if, without it, the legatee takes possession of the thing bequeathed, the executor may maintain an action of trespass or trover against him ; so, although a chat- tel, real or personal, specifically bequeathed, be in the custody or possession of the legatee, and the assets be fully adequate to the payment of debts, he has no right to retain it in opposition to the executor; by whom, in such case, an action will lie to recover H, however, the executor should, without cause, refuse to assent to a legacy the legatee is entitled to relief. A legatee, whether his legacy be specific, general, or residuary, has no right, until the estate is settled, without the consent of the executor, to withdraw a portion of the assets of the estate, liable for the payment of the debts of the testator, except as is pro- vided by statute. '- Where no trust is created by the will, there must be some '•Williams Executors, 982. Lega- v. Whitman, 41 Ind. App. 99, 83 N. tees are not entitled to the possession E. 520. of either general or specific legacies " Holland v. Holland, 131 Ind. 196, without the consent of the executor. 30 X. E. 1075 ; Gould v. Steyer, 75 Crist V. Crist, 1 Ind. 570, 50 Am. Dec. Ind. 50 ; Fickle v. Snepp, 97 Ind. 289, 481n. Legatees cannot claim the 49 Am. Rep. 449n. If a legatee is in- possession of legacies until after the debted to the estate, such indebted- debts of the testator are paid. High- ness should be retained out of his note V. White, 67 Ind. 596; Whitman legacy, and the claims of the estate 574 INDIANA PROBATE LAW. g 345 limit to the time in which a legatee may maintain an action for the enforcement of his legacy; it is, therefore, held that the fifteen-year limitation applies to such actions/^ If there be several executors, the assent of any one is suffi- cient.^* An executor cannot be compelled to deliver property specific- ally bequeathed, or pay general legacies until all other debts of the testator are discharged, but he may do so after the lapse of one year from the granting of his letters if the estate be clearly solvent; or he may even sooner than this satisfy a specific be- quest by a delivery of the property bequeathed if the legatee entitled thereto will secure the redelivery thereof to the executor if such property should be needed for the payment of debts or for equalizing legacies under the will.'^ § 345. As to void and lapsed legacies. — For various rea- sons legacies may become incapable of discharge and satisfaction by the executor in the specific terms of the will, as where they were void from the beginning because there never was a legatee to take, or where they become inoperative from some cause aris- ing after the will was made, as the death of the legatee before the testator,'*' or the marriage before the testator's death of a legatee to whom a legacy is given so long as she remains unmar- ried," or a legacy to a corporation whose charter expires before the death of the testator ;'** or where the legatee renounces the legacy.'^'' In such cases it becomes important to know what ap- plication to make of the property or funds included in such lega- cies. have preference over the general judg- v. Smith, l(i Ind. 236; Fickle v. Snepp, nient creditors of the legatee. Koons 97 Ind. 289. 49 Am. Rep. 449n; V. Alellett, 121 Ind. 585, 23 N. E. 95, Whitman v. Whitman, 41 Ind. App. 7 L. R. A. 231n ; Fiscus v. Fiscus, 99, 83 N. E. 520. 127 Ind. 283, 26 N. E. 831; New v. ™ Gray v. Bailey, 42 Ind. 349; Max- New, 127 Ind. 576, 27 N. E. 154. well v. Featherston, 83 Ind. 339; Col- '' Witz V. Dale, 129 Ind. 120, 27 N. lins v. Collins, 126 Ind. 559, 25 N. E. E. 498. 704, 28 N. E. 190. '* Boone v. Dyke, 3 T. B. ]\Ion. '' Andrew v. Andrew, 1 Colly 686. (Ky.) 530; Murphree v. Singleton, 37 " Crum v. Bliss. 47 Conn. 592. Ala. 412. ™ Pendleton v. Kinnej', 65 Conn. "Burns' R. S. 1908, § 2785; Smith 222, 32 Atl. 331. § 345 DISTRIBUTION LEGACIES DISCHARGE. 575 In the absence of any contrary direction or disposition in the will, or some provision of statute, such legacies will lapse and fall into the residuum and pass to the residuar}^ legatee if there is one, and if there is no residuary legatee appointed to take, such residue will pass to the next of kin for distribution as in- testate estate. The only provision of our statute upon this sub- ject is that where the bequest is to a descendant of the testator and such legatee shall die in the lifetime of the testator leaving a descendant such legacy shall not lapse but shall vest in such surviving descendant.^" And the word ''descendant" in this statute has reference exclusively to a lineal descendant, an heir in the direct descending line, and does not apply to kindred of the collateral line.^^ But a testator may by express provisions in his will prevent the lapse of a legacy, because the law favors the vesting of bequests under a will, and will consider and hold them as having vested where it can be done consistently with legal principles and the intention of the testator. ^^ The direction that the legacy shall not lapse in case the legatee die before the testator is sufficient to prevent a lapse if some other recipient therefor is pointed out by the will;^^ but the mere declaration that a bequest shall not lapse is not of itself sufficient to prevent such lapse, because the only mode of excluding him whom the law constitutes the successor to property in the absence of an}^ testamentary disposition of it, is to give such property to some one else.^* It is an established rule that where a bequest is simply to one person, and, in case of his death, to another, the primary legatee, surviving the testator, takes absolutely; the words being held to refer to a death in the lifetime of the tes- tator.^^ ^"Burns' R. S. 1908, § 3127; Cun- "1 Jarman on Wills, 532; Howard ningham v. Dungan, 83 Ind. 572. v. American Peace Soc, 49 Me. 288; 'MVest V. West, 89 Ind. 529; Baker Cope v. Cope, 45 Ohio St. 464, 15 N. V. Baker, 8 Gray (Mass.) 101. E. 206: Williams Exrs. (6 Am. Ed.), '= Ballard v. Camplin, 161 Ind. 16, p. 1306. 67 N. E. 505. ^2 Jarman on Wills, 752; Wright v. ^Borgner v. Brown, 133 Ind. 391, Charley, 129 Ind. 257, 28 N. E. 706; 33 N. E. 92; Ware v. Fisher, 2 Yeates Borgner v. Brown, 133 Ind. 391, 33 (Pa.) 578. N. E. 92. 576 INDIANA PROBATE LAW. 346 Where it appears, however, that a bequest was made to dis- charge some duty or obhgation resting upon the testator, the effect will be to preclude a lapse of the bequest although the legatee may die during the lifetime of the testator. The rule is well settled that a legacy or bequest made in payment of a debt does not lapse by the death of the legatee prior to that of the testator, and this, though the debt may have been barred by the statute of limitations at the time the testator executed his will.'" § 346. Different kinds of legacies. — Legacies are usually general, or specific. The chief distinction between them is that a specific legacy singles out the particular thing which the testator intends the legatee to have without regard to value, while a general legacy is payable out of the general assets of the estate, regard being had, as an element of the gift, either to quantity or value." Generally where the thing given is, by the terms of the bequest, distinguishable from the rest of the estate it is a specific bequest. It must be so described as to be capable of being dis- tinctly pointed out from the mass of the testator's property.*'^ ""2 Redfield Wills, 161; Ward v. Bush, 59 N. J. Eq. 144, 45 Atl. 534; Ballard v. Camplin, 161 Ind. 16, 67 N. E. 505. '^ Bradford v. Haynes, 20 Me. 105; Wallace v. Wallace, 23 N. H. 149; Abbott Law Diet. Thus a gift of "240 shares of stock" in a certain bank, the testator owning a greater number of srtch shares, is a general legacy, because the particular shares which the legatee is to have are not pointed out, and the legacy is satis- fied by the transfer of any of the shares of such stock which the testa- tor owned, to the required number; but a gift of "all the money left in the West Side Bank after carrying out the directions in the first three clauses of this my will," is a specific legacy, which the legatee is entitled 10 in specie. Tift v. Porter, 8 N. Y. 516; Evans v. Hunter, 86 Iowa 413, 53 X. W. 277. 41 Am. St. 503, 17 L. R. A. 308. **■* Tomlinson v. Bury, 145 Mass. 346, 14 X. E. 137, 1 Am. St. 464; Dean v. Rounds, 18 R. I. 436, 27 Atl. 515, 28 Atl. 802. Evans v. Tripp, 6 ]Madd. 91. "A gift of my gray horse," says Leach, V. C, "in this case, will pass a black horse, which is not strictly graj^ if it be found to have been the testator's intention that it should pass by that description ; but if the testator has no horse, the ex- ecutor is not to buy a gray horse." Says Williams, continuing the illus- tration used by Vice-Chancellor Leach, supra : "If the bequest is of 'a horse,' and no horse be found in the testator's possession at the time § 346 DISTRIBUTION LEGACIES DISCHARGE. 577 A specific legacy is in some respects of a higher grade than general legacies; in this, at least, that they, of all the legacies, shall be last resorted to for the payment of the liabilities of the estate. As to the liability of specific bequests for the payment of debts, costs, etc., the rule is thus declared : "That as long as any of the assets not specifically bequeathed remain, such as are specifically bequeathed are not to be applied in payment of debts, although to the complete disappointment of the general legacies."^® A specific legacy is not subject to ademption nor is liable to abatement until the general legacies are exhausted, and it confers upon the legatee the right to the article bequeathed, in specie.®" But they are also subject to the disadvantage of having no re- course against the general assets of the estate, and should the specific thing given be lost, or be in any way disposed of by the testator in his lifetime, the specific legatee can have no recompense or satisfaction.®^ It v^ill be presumed that a testator intended a real benefit to one named as a legatee in his will, and courts will therefore in- cline to construe legacies as general rather than specific if the language of the will permits such construction."" There is a third class of legacies, known by the name given them in the civil law as demonstrative legacies, differing from general and partaking of the nature of specific legacies in that they are not liable to abate with general legacies upon a defi- ciency of assets, and on the other hand differing from specific and partaking of the quality of general legacies in so far as, if the fund fail, the legatee will be entitled to receive the legacy out of the general assets. A demonstrative legacy is a pecuniary legacy, or legacy of quantity, the particular fund or personal of his death, the executor is bound, "^ Armstrong's Appeal, 63 Pa. St. provided the state of the assets will 312; Hood v. Haden, 82 Va. 588. allow him, to procure a horse for the ^ Giddings v. Seward, 16 N. Y. legatee." 365; Lake v. Copeland, 82 Tex. 464, "Corya v. Corya, 119 Ind. 593, 22 17 S. W. 786; Johnson v. Conover, 54 N. E. 3; Williams Exrs. 1473. N. J. Eq. ZZ2>, 35 Atl. 291. •M3 Am. & Eng. Encyc. Law, 12. , 37— Pro. Law. 578 INDIANA PROBATE LAW. § 347 property being pointed out from which it is to be taken or paid.^^ Residuary legacies are those bequests by which a testator dis- poses of what is left of his estate after the payment and satis- faction of all his debts and prior legacies.*^* It is only what remains after all paramount claims upon a testator's estate are satisfied that passes under a residuary clause. § 347. Out of what fund legacies to be paid. — The law pre- sumes that a testator intends that legacies shall be paid out of the personal property, as this class of property is the primary fund for the payment of all debts and legacies. Whether this was or was not his intention must be ascertained from the situation and condition of his affairs a-t the time he made the will. If a tes- tator, at such time, has abundant personal property, the legatee will be confined to the personal estate, and if that afterwards fails the legacy fails, unless the words of the will indicate a dif- ferent intention.®^ And where the land of the testator, or any portion of it, passes under the residuary clause of his will, it will be liable to sale by the executor to pay specific legacies, as they are by the statute classed among the liabilities of the estate.'''^ But ordinarily an executor has nothing to do with the real estate devised by the testator, unless such real estate may be needed for the payment of the debts of the testator. Otherwise the devise will take effect at once on the death of the testator without any inteiwening act of the executor.^' "^ Woerner Am. Law Admin., § 444. In an action by legatees to have cer- ^ Thompson v. Thompson, 3 Dem. tain legacies made charges upon real (N. Y.) 409; Burke v. Stiles, 65 N. estate devised to other parties, the H. 163, 18 Atl. 657. complaint is insufficient if it does not ^'^ Coulter V. Bradley, 30 Ind. App. show whether the estate has been ad- 421, 66 N. E. 184; Coulter v. Bradley, ministered upon, and settled, and 163 Ind. 311, 71 N. E. 903; Campbell sliow why such legacies were not v. Martin, 87 Ind. 577; Duncan v. paid out of the personal property. Wallace, 114 Ind. 169, 16 N. E. 137; Longacre v. Stiver, 135 Ind. 584, 35 Davidson v. Coon, 125 Ind. 497, 25 N. N. E. 900 ; Coulter v. Bradley, 163 E. 601, 9 L. R. A. 584n. Ind. 311, 71 N. E. 903. '« American Cannel Coal Co. v. "Campbell v. Martin, 87 Ind. 577. Clemens, 132 Ind. 163, 31 N. E. 786. § 347 DISTRIBUTION LEGACIES DISCHARGE. 579 While lands not specifically devised may, in the absence of per- sonal property sufficient, be held liable for the payment of lega- cies, the rule is somewhat different when the land passes under a specific devise. In such case the intention to so charge it must be manifest from the will. Where a specific devise of land is made, and a general legacy is bequeathed without charging the legacy upon the land devised, it is then incumbent upon the legatee who seeks to charge the land, to show that the testator had no personal estate, at the time the will was executed, out of which the legacy could be paid. The general rule is that where the provisions of the will can be given effect without burdening the land specifically devised, it will be done, and this implies that where' there is a specific devise of land and a general bequest of money, and no express charge upon the land, the land is not burdened unless it appears that the testator impliedly intended that the land should be charged, and where he has personal estate no such intention can be implied as against the specific devisee.^^ And further, where legacies are given and then all the residue of the estate both real and personal, such legacies will be charged on the land.^^ If the debts of a testator are made a charge upon lands de- vised, the devisees, by accepting the devise, do not become per- sonally liable for such debts. The same rule will perhaps apply ''Davidson v. Coon, 125 Ind. 497, press terms, or the intention of the 25 N. E. 601, 9 L. R. A. 584n; Nash testator may be gathered from the V. Taylor, 83 Ind. 347. entire will taken together. It is firm- '*3 Jarman Wills, p. 426. In Nash ly established that a charge may be V. Taylor, 83 Ind. 347, the court says : implied and requires no particular "A testator may, unquestionably, form of words." Citing Lupton v. charge an annuity upon land devised, Lupton, 2 Johns Ch. (N. Y.) 614; and in such a case the devisee takes Ripple v. Ripple, 1 Rawle (Pa.) 386; the land burdened with the charge. Davis's Appeal, 83 Pa. St. 348; Gil- Where a devise of land is made with bert's Appeal, 85 Pa. St. 347; Quinby such a burden, the devisee cannot v. Frost, 61 Me. 11 ; Heslop v. Gatton, hold it without conforming to the re- 71 111. 528; Lindsey v. Lindsey, 45 quirements of the will. A charge Ind. 552. upon real estate may be made in ex- 580 INDIANA PROBATE LAW. § 347 in case of legacies, unless the payment of the legacies by the devisee is made a condition of the devise.^ The law is, that a gift to one by will of all the interest the testator has as a mortgagee of real estate, is a bequest of per- sonal property and passes no interest in or title to the mortgaged land.=^ When a legacy is given with a direction in the will that it is to be paid by one to whom real estate is devised, such real estate is charged with the payment of the legacy. The rule is the same where the executor, who is the devisee of real estate, is charged with the payment of the legacy.^ And if, in such case, the devisee accepts the devise he becomes personally bound to pay the legacy, even though the land devised to him is less in value than the amount of the legacy. The only way for the devisee to escape such responsibility is to refuse to accept the devise.* But the land is not charged by a mere direction to the devisee to pay a legacy, for, unless it appears from the will that it was the tes- tator's intention to charge the land, the direction is merely per- sonal and the devisee is only bound if he accepts the devise.^ Doubtful words in a will are not to be construed as exempting the personal estate of a testator from the payment of legacies, or of charging them on his real estate.® A direction in a will that the testator's widow should "be en- titled to a living" off of certain land devised by the will to others creates a charge on such land to the extent of the rents and 'Lofton V. Moore, 83 Ind. 112; Landwehr, 43 Ind. App. 724, 88 N. E. Brown v. Knapp, 79 N. Y. 136; Hayes 105. V. Sykes, 120 Ind. 180, 21 N. E. 1080 ; * Williams v. Nichol, 47 Ark. 254, Porter v. Jackson, 95 Ind. 210, 48 1 S. W. 243 ; Bohn v. Barrett, 79 Ky. Am. Rep. 704; Watt v. Pittman, 125 378; Eikman v. Landwehr, 43 Ind. Ind. 168, 25 N. E. 191. App. 724, 88 N. E. 105. ' Cornett v. Hough, 136 Ind. 387, 35 ' Wright v. Denn, 10 Wheat. (U. N. E. 699; Martin v. Smith, 124 S.) 204, 6 L. ed. 303; Penny's Ap- Mass. 111. peal, 109 Pa. St. 323; Nudd v. Pow- ' Brown v. Knapp, 79 N. Y. 136; 2 ers, 136 Mass. 273; Hamilton v. Por- Redfield Wills, 209; Olmstead v. ter, 63 Pa. St. 332. Brush, 27 Conn. 530; Eikman v. ' Geiger v. Worth, 17 Ohio St. 564; Arnold v. Dean, 61 Tex. 249. § 34^ DISTRIBUTION LEGACIES DISCHARGE. 581 profits but imposes no personal liability on the devisee;^ and the same is true where the testator "charges his estate," with the pay- ment of a legacy.® If a legacy is made a charge against land it creates an equitable lien which may be enforced against the land after final settle- ment of the estate,® but an action will be barred after fifteen years.^° § 348. Interest on legacies. — As a general rule, no interest will be allowed upon legacies made payable in futuro until after the day of payment; and where no time of payment has been specified, the legacy will draw interest only after the expiration of a year from the death of the testator." But like all rules this one has its exceptions ; one, which has been long and well estab- lished, is in favor of the minor children of the testator where no provision has been made by the will for their maintenance during their minority. Such legacies will be charged with interest for the support of such minor legatees.^^ And where a legacy is charged upon real property, and no day of payment is men- tioned in the will, interest will be given from the testator's death." From the authorities the following propositions have been deduced: First, if one gives a legacy charged upon lands which yield rents and profits, and there is no time of payment mentioned in the will, the legacy will carry interest from the tes- tator's death, because the land yields profit from that time; second, if a legacy be given out of personal estate consisting of mortgages carrying interest, or stocks yielding profits, it seems in this case the legacy shall carry interest from the death of the 'Commons v. Commons, 115 Ind. — Ind. App. — , 94 N. E. 799; Clark 162, 16 X. E. 820, 17 N. E. 271. v. Helm, 130 Ind. 117, 29 N. E. 568, "Hayes v. Sykes, 120 Ind. 180, 21 14 L. R. A. 716n; Roberts v. Malin, N. E. 1080; Funk v. Eggleston, 92 5 Ind. 18; State v. Crossley, 69 Ind. 111. 515, 34 Am. Rep. 136. 203; Case v. Case, 51 Ind. 277; 2 * Davidson v. Coon, 125 Ind. 497, Williams Executors, 1283. 25 N. E. 601, 9 L. R. A. 584n. ^ Brown v. Knapp, 79 N. Y. 136; " Witz V. Dale, 129 Ind. 120, 27 N. Mitchell v. Bower, 3 Vesey, Jr., 282. E. 498. " Maxwell v. Wettenhall, 2 P. Wm. " Brown v. Bernhamer, 159 Ind. 26. 538, 65 X. E. 580; Lupton v. Coffel, 582 INDIANA PROBATE LAW. § 348 testator/* An executor is personally liable for interest on a legacy where he has improperly kept the legatee out of the use of it/° An executor cannot claim interest on a legacy payable to him- self where he had money in his control out of which the legacy could have been paid." Where interest is due it must be com- puted at the legal rate, whether the money earned that or not.^^ But where the executor has trafficked with the assets of the estate he may be charged with a higher rate, and even with com- pound interest.^^ Where a legacy is not payable until the happening of a speci- fied contingency, interest will not begin to run until the contin- gency occurs.^® The testator may provide that interest shall begin at any time.'" Specific legacies do not come within the general rule because they are considered separated from the general estate and appro- priated to the legatee from the time of the testator's death, and whatever produce or profit accrues upon them after that time belongs to the legatee. ^^ § 349. Ademption and satisfaction of legacies. — Ademp- tion is defined to be the payment of a legacy during the life of the testator, or some act of his which renders the legacy inoperative by reason of the testator having parted with the subject of the bequest. '^ It is said,-^ a legacy is, strictly speaking, adeemed when the " Maxwell v. Wettenhall, 2 P. Wm. =" Webster v. Hale, 8 Vesey, Jr., 26; Stonehouse v. Evelyn, 3 P. Wm. 410. 252 ; Spurway v. Glynn, 9 Vesey 483. "' Williams Exrs., 1423 ; Graybill v. ^'Dufour V. Dufour, 28 Ind. 421. Warren, 4 Ga. 528; Welsh v. Brown, "=Re Gerard, 1 Dem. (N. Y.) 244. 43 N. J. L. ?)1 . For a full collection "Way V. Priest, 13 Mo. App. 555. of cases on the subject of interest on ^* Kent V. Dunham, 106 Mass. 586 ; legacies and distributive shares, see Calloway v. Langhome, 4 Rand, note to Bullion v. Ribble, 87 Neb. 700, (Va.) 181. 128 N. W. 32, 31 L. R. A. (N. S.) '"Valentine v. Ruste, 93 111. 585; 350. Dewart's Appeal, 70 Pa. St. 403. =^ Anderson Law Diet. ^ Woerner Am. Law Admin., § 446. § 349 DISTRIBUTION LEGACIES DISCHARGE. 583 thing given has, by some act of the testator, ceased to exist in the form in which it is described in the will, so that on his death there is nothing answering the description of the legacy to be given to the legatee. Ademption, therefore, can only happen in cases of specific legacies, since general or demonstrative legacies are not dependent upon the existence of specific things, and are not affected by the destruction or alteration of the subject of the gifts.^* There is a distinction to be observed between the ademption and the satisfaction of legacies. Satisfaction is where the tes- tator in his lifetime takes upon himself duties he has imposed on his executor in his will, and gives the legatee what he has be- queathed him by will, thus satisfying the legacy himself, leav- ing nothing to be done after his death in respect to such legacy.^^ Satisfaction is in substance payment in the lifetime of the tes- tator and is applicable to all classes of legacies. A specific legacy is adeemed by the extinction of the particular article bequeathed. In such case ademption becomes solely a question of identity; and when the property bequeathed is lost, destroyed, or disposed of in the lifetime of the testator, or its form so changed that it cannot be identified when the will goes into effect, a specific legacy is said to be adeemed.^*' A distinction exists between the becjuest of a thing in specie and the bequest of its proceeds; in the one case the sale of the article will work an ademption of the bequest, in the other it will not." There is an arbitrary doctrine which originated in equity, sometimes called ademption by advancement, in which, where a father, or one who stands in loco parentis to a child or a grand- child, having by will given such child a legacy afterwards, in "Gilbreath v. Winter, 10 Ohio 64; Johnson, 48 Ind. 1; Roquet v. El- Smith's Appeal, 103 Pa. St. 559. dridge, 118 Ind. 147, 20 N. E. 7Z2,; ^Burnham v. Comfort, 2>7 Hun Clayton v. Akin, 38 Ga. 320, 95 Am. (N. Y.) 216. Dec. 393. ''Starbuck v. Starbuck, 93 N. Car. " McNaughton v. McNaughton, 34 183 ; Hoke v. Herman, 21 Pa. St. 301 ; N. Y. 201 ; Nooe v. Vannoy, 6 Jones Hood V. Haden, 82 Va. 588; Smith's Eq. (N. Car.) 185; Warren v. Wig- Appeal, 103 Pa. St. 559; Weston v. fall, 3 Des. (S. Car.) 47. 584 INDIANA PROBATE LAW. § 349 his lifetime, advances such child, as a marriage portion or other- wise, such advancement is held to constitute a complete ademp- tion of the legacy whether the portion so advanced was larger than, equal to, or smaller than the legacy. This doctrine has been censured and criticised by eminent judges and law writers of high authority." But as Judge Worden of our state Supreme Court says : "Whatever may be thought of the doctrine, it is thoroughly established in English and American jurispru- dence."-** The rule is that where a parent, or other person in loco paren- tis, bequeaths a legacy to a child or grandchild, and afterward, in his lifetime, give a portion, or makes a provision for the same child, or grandchild, without expressing it to be in lieu of the legacy, if the portion so received, or the provision made, be equal to, or exceed the amount of the legacy; if it be> certain and not merely contingent; if no other distinct object be pointed out; and if it be ejusdem generis, then it will be deemed an ademption of the legacy. The ground of this doctrine seems to be, that every such legacy is to be presumed as intended by the testator to be a portion for the child or grandchild, whether so called or not ; and that, if he afterward advances the same sum, he does it to accom- plish his original object, as a portion; and that under such cir- cumstances it ought to be deemed an intended satisfaction or ademption of the legacy, rather than as an intended double por- tion.^" This doctrine of presumed or constructive ademption is not, however, applicable to residuary legacies; for it has been said that a residue is always changing. It may amount to some- thing, or be nothing; and therefore no fair presumption can arise of its being an intended satisfaction or ademption. ^^ The doc- ^* See Story Eq. Jur., §§ 1110, 1112, after having made a bequest, gives a 1113, 1118; Williams Exrs., 1332; portion to the child to whom the be- Evans v. Beaumont, 4 Lea (Tenn.) quest is made equal to or in excess 599. of the amount bequeathed, the por- ^' Weston V. Johnson, 48 Ind. 1. tion given and the legacy being ^"Weston v. Johnson, 48 Ind. 1; 2 ejusdem generis. Roquet v. Eldridge, Story's Equity, § 1111-1112. An 118 Ind. 147, 20 N. E. 733. ademption results where a parent or "2 Story's Equity, § 1115; Clen- other person standing in loco parentis, dening v. Clymer, 17 Ind. 155. 349 DISTRIBUTION LEGACIES DISCHARGE. 58- trine of ademption is inapplicable to property taken by descent; it can be applied only to property taken by devise. The meaning of the word — to take away or extinguish — plainly shows its proper application. Besides, the doctrine is wholly inconsistent with the doctrine of advancements under our law of descent.^^ The doctrine of ademption by advancement is applicable only to general legacies, and cannot be practically applied to specific lega- cies ; and if it is not applicable to specific legacies, for the same reason it cannot be applied to specific devises. The devise of certain specific land is a specific devise; in fact, all devises of real estate may be regarded as specific. The rule of law in this state is clear that the doctrine of the ademption of legacies by ad- vancements to the legatee by the testator in his lifetime has no application to specific legacies or devises of real estate.^^ But where the testator, in his lifetime, makes a conveyance to the devisee, of lands specifically devised, such conveyance is both a satisfaction and ademption of the devise.^* While true as a general rule that the doctrine of ademption by advancement does not apply to specific devises or legacies, yet if the very thing devised or bequeathed has been transferred to the devisee or legatee in the lifetime of the testator, so that there will be nothing left for the will to operate upon, it will be held an effectual ademption.^^ While a legacy may be adeemed by implication, when the devisee stands in loco parentis to the lega- tee, there is no rule of law that prohibits a legacy from being satisfied by advancements, by express agreement, even though the legatee be a stranger.^*^ '= Clendening v. Clymer, 17 Ind. "^ Marshall v. Rench, 3 Del. Ch. 155; Stokesberry v. Reynolds, 57 Ind. 239; Haselwood v. Webster, 82 Ky. 425.' ' 409; Webb V. Jones, 36 N. J. Eq. 163. ^Weston V. Johnson, 48 Ind. 1; "" Roquet v. Eldridge, 118 Ind. 147, Wigram on Wills, 339. Whether a 20 N. E. 72>Z; Swails v. Swails, 98 legacy be specific or demonstrative, if Ind. 511. it clearly appears that the particular '"Robbins v. Swain, 7 Ind. App. thing or fund bequeathed has been 486, 34 N. E. 670; Richards v. Hum- irrevocably delivered over to the phreys, 15 Pick. (Mass.) 133; Gray legatee in the lifetime of the testator, v. Bailey, 42 Ind. 349. As a general the legacy is adeemed. Roquet v. El- rule, the conveyance of property by dridge, 118 Ind. 147, 20 N. E. 7?>2,. the testator to a legatee, after the 586 INDIANA PROBATE LAW. § 349 Where one who has made his will giving a legacy to a child, afterwards, during life, gives a portion to, or makes provisions for such child, it will be deemed, even if not so expressed, an ademption or satisfaction of the legacy, if the circumstances in- dicate that intention; if it is not less than the legacy; if it is cer- tain and of the same general nature; but, if the difference be- tween the gift inter vivos and the legacy named in the will be large and important, then the presumption of an intention to substitute the portion for the legacy ought not, and will not, be allowed to prevail.^' In regard to the revocation of bequests of personal estate by ademption, the general rule is, that in order to complete the title of a specific legatee to his legacy, the thing bequeathed must, at the death of the testator, remain in specie as described in the will, otherwise the legacy is considered as revoked by ademption. The intention of the testator is immaterial in the ademption of specific legacies, because the subject being extinct at the death of the testator, there is nothing upon which the will can operate. ^^ The principle of ademption by a subsequent portion has not been applied to the devises of real estate, and it has been decided that it does not apply to real estate. ^^ execution of the will, is to be treated 511; Roquet v. Eldridge, 118 Ind. 147, as an ademption of the legacy. State 20 N. E. 7ZZ. V. Crossley, 69 Ind. 203. The doc- ^Jarman Wills, 172; Raper Leg- trine of ademption is not applicable acies, 329. to residuary legatees. Clendening v. "2 Redf. on Wills, 441; Clark v. Clymer, 17 Ind. 155. If property or Jetton, 5 Sneed (Tenn.) 229. A money is received from the testator father executed a will devising his in full of all claims by the legatees homestead farm to two of his sons, or interest in his estate, it adeems To his four other children he be- the estate from the claims of such queathed five hundred dollars each, legatees. Gray v. Bailey, 42 Ind. 349. to be paid in cash and to be in full "State V. Crossley, 69 Ind. 203; of their interests in the homestead Weston V. Johnson, 48 Ind. 1 ; Stokes- farm. The will contained a recital berry v. Reynolds, 57 Ind. 425; Gray that the devises and bequests thus V. Bailey, 42 Ind. 349. The doctrine made were to be considered as a of ademption does not apply to spe- disposition of the homestead farm cific devises of real estate, nor where among the testator's children, and the devisor does not stand in loco were not to affect any other interest parentis. Swails v. Swails, 98 Ind. or estate. Afterward, and during the § 35C> DISTRIBUTION LEGACIES DISCHARGE. 587 The bequest of a mortgage is adeemed if the mortgage is paid off or foreclosed in the Hfetime of the testator.*'^ The doctrine of ademption by gift or satisfaction in the Hfe- time of the testator only applies where the donor stands in loco parentis to the legatee. Where the legatee is a stranger, no pre- sumption of satisfaction arises.*^ Money paid to a married woman in ademption of a legacy produces the same legal result as if she were unmarried.*" § 350. Legacy to a creditor. — There is, in equity, a rule which was adopted from the civil law, that if a man owes a debt, and by his will gives to the creditor a legacy, equal to or greater in amount than the debt, such legacy is to be considered as a sat- isfaction of the debt. To be a satisfaction the legacy must be certain and of the same nature as the debt.*^ The rule announces a doctrine that meets with much disap- probation from the courts, and which retains its position as a rule by force of precedent rather than reason. A false principle established long ago, and as is said in one case : 'That principle being established, successive judges have said they cannot alter testator's lifetime, the devisees of the married woman, in ademption of a homestead farm furnished their legacy, produces the same legal re- father two thousand dollars, out of suit as if she were unmarried. Ro- which he paid each of the four le- quet v. Eldridge, 118 Ind. 147, 20 N. gatees five hundred dollars, and re- E. 733. ceived from each a receipt, as fol- ^"Gardner v. Hatton, 6 Sim. 93; lows: "Received from William B. Beck v. McGillis, 9 Barb. (N. Y.) 35. Eldridge five hundred dollars, in con- *" Swails v. Swails, 98 Ind. 511 ; sideration of my interest in his home- Lj-ddon v. Ellison, 19 Beav. 565. stead farm, corresponding with his "^Roquet v. Eldridge, 118 Ind. 147, last will." At the death of the testa- 20 N. E. 733. tor the homestead farm and property " Hammond v. Smith, 33 Beav. 452 worth five hundred dollars constitut- Story's Eq. Jur., §§ 1119, 1120, 1122 ed his entire estate. Held, that the Strong v. Williams, 12 Mass. 402 legacies wei-e neither specific nor de- Fitch v. Peckham, 16 Vt. 150; Rey- monstrative, and that they were nolds v. Robinson, 82 N. Y. 103, 37 adeemed and satisfied by the pay- Am. Rep. 555 ; Horner v. McGaughy, ments made in the manner disclosed. 62 Pa. St. 189; Heisler v. Sharp, 44 Held, also, that money paid to a N. J. Eq. 167, 14 Atl. 624. 588 INDIANA PROBATE LAW. § 350 it. But what they have done is to rely on the minutest show of difference to escape from that false principle."** The tendency to get rid of the rule is even stronger in the American than in the English cases.*^ The rule can be enforced only in chancery. Such testamen- tary provision does not operate as a satisfaction of the debt on merely legal grounds.*® But where the debt is made an express charge on the legacy, or the intention is expressed that the legacy is given in satisfac- tion of the debt; or the legacy is given under an agreement, ex- press or implied, between the debtor and creditor that the de- mand shall be so paid, the legacy will extinguish the debt. The creditor in such case, however, may elect not to take the legacy, otherwise he will be precluded from recovering his debt.*' The courts are quick to accept any fact or circumstance from which it may be inferred that the testator had a different inten- tion, and by any reasonable construction of the will overthrow the presumption raised by the rule. The presumption in favor of a satisfaction of the debt is com- pletely rebutted where there is a direction in the will to the executor to pay all debts and legacies.*^ And the American cases hold that a direction to pay debts alone, is sufficient to overcome the rule.*® The rule is reversed by statute in some of the states.^" Nor, on the other hand, will a legacy by a creditor to his "Hassell v. Hawkins, 4 Brew. '^ Charlton v. West, 30 Beav. 124; (Pa.) 468. Strong v. Williams, 12 Mass. 402; '= Smith V. Smith, 1 Allen (Mass.) Edelen v. Dent, 2 G. & J. (Md.) 185. 129; Strong v. Williams, 12 Mass. *" Fort v. Gooding, 9 Barb. (N. Y.) 402. 371 ; Reynolds v. Robinson, 82 N. Y. *" Clark V. Bogardus, 2 Edw. Ch. 103, TH Am. Rep. 555; Owens v. (N. Y.) 387; Malony v. Scanlan, 53 Simpson, 5 Rich. Eq. (S. Car.) 405; 111. 122. Cloud V. Clinkinbeard, 8 B. Mon. *' Eaton V. Benton, 2 Hill (N. Y.) (Ky.) 397, 48 Am. Dec. 397. 576; Sholl V. Sholl, 5 Barb. (N. Y.) =° Hawkins Wills, 299n; Morris v. 312; Smith v. Furnish, 70 Cal. 424, Morris, 3 Houst. (Del.) 568. 12 Pac. 392; Williams v. Crary, 5 Cow. (N. Y.) 368. § 35 1 DISTRIBUTION LEGACIES DISCHARGE. 589 debtor operate as a release or extinguishment of the debt, unless such intention clearly appears from the will.^^ Such legacy does not in itself operate as a discharge of the debt. It merely provides the legatee with means to pay the debt, while the debt itself remains a valid and existing obligation in favor of the estate.^- It is provided by statute in this state that the discharge of any demand of the testator against any person shall be construed only as a specific bequest of such demand, and the amount thereof shall be included in the inventory of the effects of the deceased, and, if necessary, be applied to the pay- ment of his debts, and, if not necessary for that purpose, shall be paid in the same manner as other specific legacies. ^^ It is said in one case that *'it has been held by a long list of well-considered decisions and is recognized by all text writers on the subject of wills that a bequest by the testator to his creditor of a legacy as great as, or greater than, the debt, without any mention of the debt in the will, is regarded as a satisfaction of the debt, and the creditor cannot take both debt and legacy."^* And where a testator gives a legacy in his will for the express purpose of paying a debt, and then afterwards pays the debt in his lifetime, such legacy is satisfied although it was for a greater sum than the debt,^° but if the language of the will be inconsist- ent with this view the legacy will not be adeemed.^*' § 351. When legatee a minor — Executor cannot purchase. — In case any legatee be a minor, his legacy, if so directed by the court, and no other provision for the payment thereof be made by the will, may be paid to the guardian of such minor, and such court may require an additional bond of such guardian if the amount of such legacy was not taken into consideration at the time he gave bond as such guardian. ^^ ''Roper Leg., 1064; Williams' '^Chaplin v. Leapley, 35 Ind. App. Exrs., 1303; Story's Eq. Jur., § 1123; 511, 74 N. E. 546. Eden v. Smyth, 5 Ves. 341. ^= Taylor v. Tolen, 38 N. J. Eq. 91. ^ Bowen v. Evans, 70 Iowa 368, 30 =« Keiper's Appeal, 124 Pa. St. 193, N. W. 638. • 16 Atl. 744. ''Burns' R. S. 1908, § 3130; Becker "Burns' R. S. 1908, § 2905. Minor V. Becker, 96 Ind. 154. legatees cannot appoint an agent or 590 INDIANA PROBATE LAW. § 352 Unless so directed by the will, a payment to an infant legatee himself is no protection to the executor, and he will be liable to the guardian. ^^ If, however, the infant has no guardian the legacy may be paid into court. ^^ And if the amount of such legacy is not in excess of one hun- dred dollars, the clerk upon order of the court, may pay the same to the minor directly without the intervention of a guar- dian or next friend, and the receipt of such minor legatee shall be binding upon both him and his heirs.*^'' The executor stands in a fiduciary relation to the legatees, and the purchase by him of a legacy will be void, the legatee, not- withstanding such purchase, being entitled to the full payment of his legacy, with interest thereon from the time when it should have been paid, if the assets are sufficient to pay it in full.^^ § 352. The order of discharge. — The estate having been fully administered and final settlement made after such notice as the statute requires to all who may be interested in the settle- ment of the estate, and the executor or administrator, having paid all the debts, and legacies, or distributive shares, he is en- titled to be discharged from further liability on account of such administration. The approval by the probate court of a final settlement is an adjudication that the executor or administrator has properly accounted for all the assets of the estate, and neces- sarily means that a determination has been had of all matters properly included in such settlement. Such an adjudication is conclusive and is impervious to all except a direct attack in an action to set aside the final settlement.^^ But matters which were not within the scope of the issues pre- attorney to receive their distributive ^^ Goodwin v. Goodwin, 48 Ind. 584. shares. Tapley v. McGee, 6 Ind. 56. "' Carver v. Lewis, 105 Ind. 44, 2 =* Davis V. Crandall, 101 N. Y. 311, N. E. 714; State v. Burkam, 23 Ind. 4 N. E. 721; Decrow v. Moody, 73 App. 271, 55 N. E. 237; Green v. Me. 100. Brown, 146 Ind. 1, 44 N. E. 805; °°Kent V. Dunham, 106 Mass. 586; Kuhn v. Boehne, 27 Ind. App. 340, Thurston v. Sinclair, 79 Va. 101. 61 N. E. 199. '" Burns' R. S. 1908, §§ 2932-2933. § 353 DISTRIBUTION LEGACIES DISCHARGE. 591 sented in a final settlement are not concluded by the judgment. It is not conclusive or binding upon that which was neither directly before the court nor necessarily involved in that which was before the court and adjudicated.®^ Unless an executor or administrator is discharged in accord- ance with some statutory provision neither his authority nor liability is affected by the approval of their account in final set- tlement except in so far as the order of approval may protect him under the doctrine of res adjudicata. So until a decree is entered discharging him from all further liability in connection with the estate, the trust, in contemplation of law, continues, and the executor or administrator remains clothed with the duties and authority of his office,®* it being said that a final settlement is not a discharge "unless there is an order discharging him."®^ The statute in this state authorizes the discharge of an executor or administrator, and whenever his final report is approved he is entitled to be discharged and the order should so decree.®® Upon satisfactory proof that distribution has been made as ordered, the court should enter a formal judgment discharging the executor or administrator from all further liability.®^ An order of discharge made upon filing a final report will not be regarded as a final settlement, if the records of the court show property yet in the hands of the administrator, or debts remain- ing yet unpaid. ®® § 353. Disposition of real estate of unknown heirs. — If, at the final settlement of an estate, there remain real estate of the decedent undisposed of, and there be no executor authorized by will to take possession thereof, and no heirs or devisees entitled •"Henderson v. Henderson, 21 Mo. "^Burns' R. S. 1908, § 2924; Hart- 379; Dickinson v. Hayes, 31 Conn, zell v. Hartzell, Z7 Ind. App. 481, 16 417; Flanders v. Lane, 54 N. H. 390. N. E. 439. ■^Rogers v. Johnson, 125 Mo. 202, «' Jacobs v. Pou, 18 Ga. 346; Re 28 S. W. 635; Dohs v. Dohs, 60 Cal. Hood, 98 N. Y. ZdZ; Camper v. Ha- 255. yeth, 10 Ind. 528; Sanders v. Loy, 61 ''Ligon V. Ligon, 84 Ala. 555, 4 So. Ind. 298; Carver v. Lewis, 104 Ind. 405 ; Fletcher v. Nicholson, 45 Ind. 438, 2 N. E. 705. App. 375. 90 N. E. 910. °* Crossan v. McCrary, Zl Iowa 684. 592 INDIANA PROBATE LAW. § 353 thereto shall appear and take possession of the same, the circuit court in which such final settlement was made shall direct the administrator who settled said estate to lease such real estate, if it be susceptible of producing rent, for one year, taking bond from the lessee, with sufficient surety, for the payment of rent and taxes on the real estate and the keeping of the same in good order. Such administrator shall render to the court, whenever required, a verified account of such renting, and pay into court any moneys arising therefrom, after deducting costs and ex- penses allowed by the court.'''* Such court may, from time to time, order the re-leasing of such real estate, in case the heirs or devisees thereof do not ap- pear and establish their title, until the expiration of five years after such final settlement, when, if no heirs appear, the court shall order such administrator to sell such real estate under the same regulations as are provided in case of sales of real estate where the personal estate is insufficient to pay debts, and upon the purchase-money therefor being paid into court, the clerk shall pay the same to the treasurer of the county, who shall pay it to the treasurer of state, on whose books it shall be credited to the unknown heirs of the deceased.'^" Any administrator failing to pay into court any moneys re- ceived on account of the rent or sale of real estate of unknown heirs or devisees when required to do so by the provisions of this act, or by the court, shall be liable on his bond therefor ; and in the absence of such owners, suit on the bond shall be prosecuted by the prosecuting attorney, who shall be allowed compensation for his services out of the damages recovered.'^ The theory of the above statute is, that such real estate of a decedent, whose heirs or devisees are unknown or absent, and fail to take possession of or claim the same, which might not be needed for the payment of his debts, should be kept intact as real estate, until the expiration of five years after the final settlement of such decedent's estate, and should then be sold, under the '" Burns' R. S. 1908, § 2935. '^ Burns' R. S. 1908, § 2942. ^"Burns' R. S. 1908, § 2936. § 354 DISTRIBUTION LEGACIES DISCHARGE. 593 order of the proper court, as real estate is sold for the payment of a decedent's debts, and the proceeds of such sale ultimately paid into the state treasury/^ § 354. Same — Notice, appearance, disposition of money, etc. The court may direct notice to such unknown heirs of the pendency of such proceedings, to be given at any time before such five years have elapsed, in any newspaper printed and pub- lished in the United States." If at any time after such final settlement, and before the sale of said real estate, the heirs or devisees appear in such court and prove their title to said real estate, the court shall suspend further proceedings touching the lease or sale thereof; and if such real estate be then leased, the court shall order the administrator hold- ing such lease to pay over the rents, and assign the same, and the bond for the payment of the rent, to such heirs or devisees, and discharge him from further duties in the premises, and shall tax the costs and expenses incurred in the execution of such trust to such heirs or devisees. ''* . If, at the expiration of two years from the final settlement of an estate, no proof of heirship or title by will shall have been made as to all or any portion of the surplus, the court shall direct the same to be paid to the county treasurer, to be paid by him to the treasurer of state, who shall enter the same on his books to the credit of the unknown heirs of the decedent." An administrator who fails or refuses to comply with such order is liable to removal.'^^ The clerk of the circuit court shall report to the auditor of state, within thirty days after the same is paid into the court, the amount of money belonging to unknown heirs which has been directed to be paid to the county treasurer, with the names of the decedent and the executor or administrator; and such auditor shall enter the same on his account against the treasurer of state, who shall order suit to be brought against all officers on their bonds who are delinquent in the management of the same." " State V. Meyer, 63 Ind. 33. '' Burns' R. S. 1908, § 2939. "Burns' R. S. 1908, § 2941. ™Fuhrer v. State, 55 Ind. 150. " Burns' R. S. 1908, § 2937. " Burns' R. S. 1908, § 2940. 38— Pro. Law. 594 INDIANA PROBATE LAW. § 355 If, at any time after the receipt of the proceeds of such estate by the treasurer of state, the heirs or devisees of such decedent appear before the court in which the estate was settled and prove their heirship, such treasurer of state, on a certified copy of the record of such proceeding, signed by the clerk of such court and attested by his official seal, shall pay to such heirs the amount of their share of such estate in the state treasuiy.'^^ §355. Same — A species of escheat. — The foregoing stat- ute providing for the disposal of the estates of unknown and ab- sentee heirs is, to a certain extent, a species of escheat. If such estates are not claimed it would seem that they would lapse to the state as unclaimed estates. What shall be done with estates which have escheated is more fully explained under the title of escheats in chapter XXXII. By these statutes, if the heirs of a decedent are unknown, or fail to appear and make proof of heirship and title to the surplus of an estate, such surplus must be paid into the state treasury; and if there are no heirs capable of inheriting, such estate escheats to the state ; but where proof of heirship or title by will has been made or shown to the whole or any part of the surplus of an estate yet in the proper court, such court is neither required nor authorized to direct the payment of such surplus, or part thereof, to the county treasurer; and how long in such a case, after proof made, the surplus of an estate, or part thereof, ought to be allowed to remain unclaimed in the hands of the clerk, is a ques- tion not yet decided.'^ "Burns' R. S. 1908, § 2938. this section the proper officers may "" State V. Meyer, 63 Ind. 33. This bring suit therefor. Reid v. State, 74 section does not require the payment Ind. 252 ; State v. Witz, 87 Ind. 190. of money into the county treasury If no claim is made within two years where proof of heirship is made and from the settlement of an estate to the money is not called for within the surplus for the distribution to two years after final settlement, heirs, the court should order the same State V. Taggart, 88 Ind. 269. If paid into the county treasury. Fuhrer money is not paid into the county v. State, 55 Ind. 150. treasury that should be so paid under CHAPTER XV. ESTATES UNDER FIVE HUNDRED DOLLARS. § 356. Dispensing with administra- § 361. Issuing of certificate — Its tion. effect. 357. Policy of the statute. 362. Lien of chattel mortgage. 358. Petition, inventory and ap- 363. Lien of judgment, etc. praisement. 364. Suits by widow. 359. Notice, hearing and decree. 360. Contest by creditors, reap- praisement. § 356. Dispensing with administration. — The general rule, as has been shown, is, that an administration upon the estate of a decedent is a legal necessity, and can rarely be dispensed with. There is one instance only known to our statutes, where an ad- ministration of the estate is not required, and that is in the case of estates which do not exceed five hundred dollars in value. In such case, following out the theory of the law, which aims to make ample provision for the widow out of the estate of her deceased husband, the statute gives to the widow the entire estate. Where it is believed that the estate of any deceased husband does not exceed in value the sum fixed by statute as the widow's abso- lute allowance, the estate may be inventoried, appraised, and set- tled without an administrator, and without any costs or expenses of administration. The entire estate, in such case, is devolved by law upon his \vidow. One eminent writer says : "The soundness of the principle upon which such provisions rest, or rather the absurdity of a contrary view, is self evident. Why should the law compel an administra- tion where there is nothing to administer? The appointment of an administrator in such case could have no possible effect but 595 596 INDIANA PROBATE LAW. § 357 to diminish or eat up what the law intends for the support of widows and orphans."^ And if, at any time after administration has been granted upon any estate, any executor or administrator shall discover that the whole estate of the decedent is not worth over five hundred dol- lars, and the widow of the deceased be living and entitled to share in his estate, he shall so report to the court, when, after deducting expenses of administration, the court shall enter a decree, vesting the whole of such estate in the widow, and for the delivery to her of all the assets of the estate in the hands of such executor or administrator and the revocation of his letters.- § 357. Policy of the statute. — This statute carries the pol- icy of the law in this state to its logical conclusion, that the widow of a decedent shall receive from his estate a certain amount thereof as her own, absolutely independent of debts, claims, dis- tribution or testamentary provision on her behalf.^ By this stat- ute, when the entire estate of a decedent, both real and personal, does not exceed in amount the statutory allowance now provided for the widow, viz. ; five hundred dollars, his widow becomes en- titled to the whole estate. The law gives it to her, and the title thereto is vested in her/ But such title does not vest in such widow until her right thereto has been adjudicated and passed upon by the proper court, and an order of such court has been made decreeing all the title and interest of the decedent in such estate to be vested in his widow.^ ' Woerner Am. Law Admin., § 202. * Haugh v. Seabold, 15 Ind. 343. = Burns' R. S. 1908, § 2945. The '^ Noblett v. Dillinger, 23 Ind. 505; right of the widow to the five hun- Quackenbush v. Taylor, 86 Ind. 270. dred dollars allowed her is not de- Where the widow of a decedent peti- feated by a levy made by the sheriff tioned to have all of her deceased on the property of her deceased hus- husband's estate set off to her from band in his lifetime. Dixon v. Al- the demands of creditors, upon the drich, 127 Ind. 296, 26 N. E. 843. ground that it did not exceed in value ' Burns' R. S. 1908, § 2786. Dun- the sum of three hundred dollars, and ham V. Tappan, 31 Ind. 173; Nelson such proceedings were taken as re- V. Wilson, 61 Ind. 255; Whiteman v. suited in an order purporting to vest Swem, 71 Ind. 530; Smith v. Smith, in her all of said property; and the 76 Ind. 236. heirs of said decedent, subsequently § 3SS ESTATES UNDER FIVE HUNDRED DOLLARS. 597 The right of dower and the rights of the widow under our statutes involve essentially the same principle, both growing out of the marriage relation. The statutes are rather in the nature of an enlargement than an abolishment of dower. The purpose of the legislature has been to secure at least five hundred dollars to the widow in all cases where the husband has not, in his lifetime, by his voluntary contract divested himself of ownership, or so encumbered the title to his property as to destroy the right of exemption.® § 358. Petition, inventory and appraisement. — If the widow of a decedent, or any one in her behalf, shall file a petition in the proper clerk's office that the estate of such decedent, real and per- sonal, is not worth over five hundred dollars, such clerk shall select one disinterested householder of the county, and such widow, on her part, another, as appraisers, who shall proceed to inventor}^ and appraise each solvent demand due the deceased, and each article of personal estate, other than those exempt by law from administration, and each tract of real estate, which inven- tory and appraisement they shall return to such clerk's office, when such clerk shall cause them to take and subscribe an oath that such appraisement is a true valuation of the personal and real estate of the decedent exhibited to them. And the widow shall take and subscribe an oath, to be filed with such inventory, that it contains, to the best of her knowledge and belief, a true and complete statement of the personal and real estate owned by the decedent at his death, other than the articles by law exempt from administration.^ thereto, instituted proceedings to par- Spencer v. McGonagle, 107 Ind. 410, tition such property, claiming two- 8 N. E. 266. thirds thereof as having descended to * Lloyd v. Arney, 43 Ind. App. 450, them from their father, such parti- KJ N. E. 989; Dixon v. Aldrich, 127 tion proceedings being a collateral at- Ind. 296, 26 N. E. 843. tack on the proceedings and order of ^ Burns' R. S. 1908, § 2943. A the probate court setting aside said widow to whom her husband's whole property to the widow, must fail, un- estate, consisting in part of lands, is less the order of the probate court is awarded, under the statute, takes the an absolute nullity. Threlkeld v. Al- lands free from the lien of judg- len, 133 Ind. 429, 32 N. E. 576. See ments rendered against her husband 598 INDIANA PROBATE LAW. § 359 This statute is not in the nature of a statute of exemption, and the amount is not taken by the widow free from all demands of creditors.^ An inventory and appraisement made under this statute is not conclusive as to the value of the property ; nor does it dispense with the necessity of making an inventory and ap- praisement by an administrator subsequently appointed.'"^ § 359. Notice, hearing, and decree.— The statute provides that upon the return of such inventory, if the value of such estate does not exceed five hundred dollars, the clerk shall not issue let- ters, but shall continue further proceedings in the premises until the next term of the court thereafter; when the court, if no op- position be made thereto, as provided in the next section, shall enter a decree vesting in the widow all the title and interest of the decedent in such estate at his death, and directing that no letters issue thereon : Provided, That should the next succeeding term of the circuit court not commence within fifty-one days from the date of the filing of such inventory, such widow may cause a brief notice of her claim and the filing of such inventory to be published for three successive weeks in some newspaper published in such county and of general circulation in the township where deceased resided at the time of his death ; or she may give such notice by pwDsting one copy of such notice at the door of the court house where such claim is pending, and one at each of three public places in the township where deceased resided at the time of his death, which notice shall be published or posted in the week following the filing of such inventory, and shall give the date, not . less than fifty-one nor more than sixty days from the filing of such inventory on which the decree vesting such property in the widow will be entered/" Upon such decree being entered her title to such estate, both real and personal, becomes absolute. And so long as such de- cree remains in force and is not set aside such estate is wholly in his lifetime. Quackenbush v. Tay- ' Fleming v. Henderson, 123 Ind. lor, 86 Ind. 270. See Dixon v. Al- 234, 24 N. E. 236. drich, 127 Ind. 296, 26 N. E. 843. " Pace v. Oppenheim, 12 Ind. 533. ^"Burns' R. S. 1908, § 2944. § 360 ESTATES UNDER FIVE HUNDRED DOLLARS. 599 hers, although it is afterward discovered to be of greater value than five hundred dollars." Where the creditor of an estate brings an action against one, alleging that he had wrongfully intermeddled with the property of such estate, an answer that the entire property of the estate did not exceed in value five hundred dollars, and the widow of the decedent, in anticipation of an order of the court setting off the property to and vesting the title in her, had for value transferred such property to the defendant charged with intermeddling, is a good and sufficient answer. The creditor was not injured by such transfer because he had no right to have such property go into the hands of an administrator. Such transfer, at most, was but premature. ^^ A mere clerical error in the order and record in naming the widow will not invalidate the proceedings." Nor can errors or irregularities in such proceedings be taken advantage of in a collateral attack.^* The real estate taken by the widow under such decree vests in her by an absolute fee simple title with full power in her to sell and convey the same without any restriction, and free from any claim of the children of the first husband. ^^ Nor is the real estate taken by the widow under this statute subject to a mechanic's lien, filed after the husband's death, for materials furnished the husband and used in erecting a building on such real estate.^'' § 360. Contest by creditors, reappraisement. — It is also provided that any creditor, heir or legatee of such decedent may, at such succeeding term of court or within fifty days after the filing of such inventory, file in the proper court his verified peti- tion contesting any of the material facts set forth in such in- ventory and appraisement, thereby showing that the said estate was improperly valued and that estate was of a value in excess of "Downs V. Downs, 17 Ind. 95; "Spencer v. McGonagle, 107 Ind. Noblett V. Dillinger, 23 Ind. 505. 410, 8 N. E. 266. ^Kahn v. Tinder, 11 Ind. 147. ^'Odell v. Reynolds, 156 Ind. 253, ^^Threlkeld v. Allen, 133 Ind. 429, 59 N. E. 846. 32 N. E. 576. "■ ^^ Lloyd v. Arney, 43 Ind. App. 450, 87 N. E. 989. 600 INDIANA PROBATE LAW. § 361 five hundred dollars, or that property of said estate was not in- cluded in the inventory, which, if properly valued, would make the value of the estate in excess of five hundred dollars; in such case the court shall appoint two other disinterested householders of the county, who shall proceed to re-appraise said estate under the same regulations as in the case of the first appraisement and shall make report thereof within ten days unless for good reason longer time be given; and if said appraisers find such estate not to be worth over five hundred dollars, such proceedings shall be dismissed at the cost of the petitioner/^ § 361. Issuing of certificate — Its effect. — Upon the court entering the decree vesting the title to such estate in the widow, the clerk of the court shall make and deliver to her a certified copy thereof, which shall be all the authority necessary to enable her to sue for and recover all debts due the decedent, and the possession of any property belonging to such estate, such suit being prosecuted in her own name. And such widow shall not be liable for any of the decedent's debts, except mortgages of real estate, but she shall pay and may be sued for reasonable funeral expenses of the deceased and expenses of his last sickness.^^ The wording of this section of the statute seems too plain for construction. When it says that the widow shall not be liable for any of the debts of the decedent, except mortgages of real estate, and the reasonable funeral expenses and expenses of last sickness, its meaning appears to be as plain as words can make it ; but it has been held that she must pay all debts of the decedent which have become specific and particular liens even against the personal property of such decedent, in his lifetime, such as chattel mortgages of specific personal property, executions on judgments " Burns' R. S. 1908, § 2945. ble only for an unliquidated indebted- " Burns' R. S. 1908, § 2946. When ness created on account of the last the estate is set off to her on petition, sickness of the husband, and is not a suit is not maintainable against the liable to suit on notes executed by- widow on a judgment rendered her husband or the judgments ren- against the husband upon a note exe- dered against him. Weir v. Sanders, cuted by him before his death for 124 Ind. 391, 24 N. E. 980. medical services. The widow is Ha- § 362 ESTATES UNDER FIVE HUNDRED DOLLARS. 60I against the decedent issued and levied in his Hfetime, etc. And whenever, under these statutes, the widow procures the whole estate to be delivered to her, she becomes liable for reasonable funeral expenses and for the expenses of the last sickness. ^^ Where a person dies under such circumstances as to require a coroner's inquest, and such decedent leaves an estate of less value than five hundred dollars, his widow's claim to the estate, under these statutes, is superior to that of the county for the payment of the expenses of such inquest. ^^ In estates of five hundred dollars and under, taken by the widow, no costs or fees shall be taxed or collected.^^ § 362. Lien of chattel mortgage. — In the case of Recker v. Kilgore, 62 Ind. 10, it was decided that the personal property of a deceased husband, encumbered by a chattel mortgage, executed by the decedent in his lifetime, to secure the payment of a debt, on default in such payment, might be replevied by the mortgagee from the decedent's widow, even where such property, by reason of the fact that it constituted all of such decedent's estate, and was of a less value than five hundred dollars, had been duly appraised and set off to such widow by order of the proper court. In that case the court says: "At the time the deceased executed the chattel mortgage mentioned in the answer, he had the power and the right to thus encumber the property mentioned in it. His death did not free the property from the lien. The prop- erty was properly given to his widow, but she took it subject to the incumbrance. The widow may redeem the property by paying the incumbrance ; or, might probably procure it to be sold to pay the mortgage, she receiving the proceeds of the sale over and above paying the mortgage debt. The widow was not bound to pay the husband's debts, but she was bound to remove legal and valid liens he had placed upon his property or suffer said property to be taken for the payment thereof. "^^ ' "Green v. Weever, 78 Ind. 494; =" Dubois County v. Wertz, 112 Ind. Fleming v. Henderson, 123 Ind. 234, 268, 13 N. E. 874. 24 N. E. 236; Weir v. Sanders, 124 =" Burns' R. S. 1908, § 7324. Ind. 391, 24 N. E. 980. === Mead v. McFadden, 68 Ind. 340; 602 INDIANA PROBATE LAW. § 363 Neither the constitution nor the statute, was meant to restrain the debtor from voluntarily incumbering or transferring his prop- erty." § 363. Lien of judgment, etc. — In the case of Quacken- bush V. Taylor, 86 Ind. 270, construing the statute, the court says : "This section is the conclusion of the provisions for giving all the estate, both real and i)ersonal, where it does not exceed in value the sum of five hundred dollars, and appears to give to the widow an absolute title to all of such property except as against specific liens, and mortgages on real estate are mentioned as exceptions. It gives her the right to sue for and recover the pos- session thereof in her own name." And further, "The property had been decreed to the widow, and no specific lien existed upon it by the levying of an execution or otherwise. The only lien upon it was the general lien of the judgment. A judgment is not a lien upon personalty, and is only made a lien upon realty by statute. A judgment creditor has no right in the property of his judgment debtor; he has only the right to make his judgment eft'ectual. But when a levy of the execution is made, a specific lien attaches." And therefore, where no execution has been levied prior to the time the property is set off to the widow as being of less value than five hundred dollars, and a decree vesting the title in her has been entered by the proper court, she takes all of such property, real and personal, freed from judgments ren- dered against her deceased husband in his lifetime.-* While the widow takes and holds the real estate, if any, which may be turned over to her subject to the specific lien of a mort- gage, she takes it exempt from the liens or charges of judgments rendered against the decedent in his lifetime.^^ Love V. Blair, 72 Ind. 281; Quacken- ner v. Warner, 30 Ind. App. 578, (£ bush V. Taylor, 86 Ind. 270; Broad- N. E. 760. head v. McKay, 46 Ind. 595 ; Weir v. '* Dixon v. Aldrich, 127 Ind. 296, Sanders, 124 Ind. 391, 24 N. E. 980. 26 N. E. 843. ^ Love V. Blair, 72 Ind. 281 ; War- "' Snyder v. Thieme etc. Brew. Co. 173 Ind. 659, 90 N. E. 314. § 364 ESTATES UNDER FIVE HUNDRED DOLLARS. 603 § 364. Suits by widow. — Where, by the order of the proper court, the estate of a decedent is transferred to and vested in his widow, as being of less value than five hundred dollars, so long as such order remains in force, she may sue for and recover all claims and property of the estate, and it is not material that the property or claims so ordered to be delivered to the widow may, in point of fact, exceed the appraised value, or the statutory limit of five hundred dollars. She is entitled to recover whatever there may be of property or debts belonging to such estate by virtue of the order of the court, and such right cannot be taken from her except by setting aside such order.-" Where the estate of a decedent is less than the statutory limit of five hundred dollars, the law gives it to the widow, and no claim against the decedent acquired after his estate has been vested in his widow can be set off in a suit by her to recover such vested estate."^ =" Downs V. Downs, 17 Ind. 95; =' Haugh v. Seabold, 15 Ind. 343. Warner v. Warner, 30 Ind. App. 578, (56 N. E. 760. CHAPTER XVI. SETTLEMENT OF INSOLVENT ESTATES. § 365. As to insolvent estates. § Z72. Filing petition, etc. 366. The petition and its contents. 374. As to liens on real estate. 367. Order and notice. 375. Claim, filed after partial dis- 368. Effect of order on claims dur- tribution. ing year. 376. Final settlement — Uncollected 369. Partial settlement. assets. 370. Payment of liens. 2)77. Same — Claim pending. 371. As to set-off against liens. 378. Same — Claim of surety. 372. Sale of real estate — Petition 379. Notice of final settlement. pending. § 365. As to insolvent estates. — Our statutes provide for the settlement of a decedent's estate as insolvent whenever it becomes apparent to the executor or administrator that the assets of the estate liable for the payment of debts and liabilities are insufficient for that purpose. But m view of the fact that our statutes also establish the order of priority in which debts and lia- bilities shall be paid whether the estate is solvent or not, the neces- sity for this special statute is hardly apparent. It is the established policy of our law that claims of the same class shall stand upon an equality, and that claims in a lower class shall not be paid until all those in the class above it have been discharged, and that specific liens against any portion of the prop- erty of a decedent continue until discharged by decree or pay- ment; the filing of a secured claim not releasing the lien of the claimant.^ ^Tarplee v. Capp, 25 Ind. App. 56, v. Baker, 140 Ind. 213, 39 N. E. 868; 56 N. E. 270; Ryker v. Vawter, 117 Hall v. Price, 141 Ind. 576, 40 N. E. Ind. 425, 20 N. E. 294; Beach v. Bell, 1084. 139 Ind. 167, 38 N. E. 819; Whetstone 604 § 366 SETTLEMENT OF INSOLVENT ESTATES. 605 It is also held that if an executor or administrator, through a mistaken belief that an estate is solvent, pays a claim out of its order, he may recover a ratable portion from the claimant.^ Mr, Woerner says, "It would seem that the division of debts into classes, giving one class priority over another, is peculiarly applicable to insolvent estates, for if there be sufficient assets to pay all the debts their gradation serves no important purpose. It is this gradation of debts, and distinguishing between those created by the decedent and those growing out of the administra- tion, which produces substantially the same result in states recog- nizing no distinction between the administration of solvent and of insolvent estates. The functions of the executor or admin- istrator seem to be fully adequate in either case, since they possess all the powers of assignees, or receivers of insolvent debtors ; and the powers of probate courts are peculiarly adapted to secure the rights of creditors with full protection to executors and admin- istrators and the next of kin and legatees."^ § 366. The petition and its contents. — The declaration of insolvency is made by the court having jurisdiction of the settle- ment of the estate upon the petition of the executor or adminis- trator ; and after such declaration or order of court is made the estate, as to its settlement, must be treated as an insolvent estate even though it be afterwards found to be solvent.* The statute provides that as soon as any executor or admin- istrator shall discover that the personal estate of the decedent and the real estate liable to be made, or which shall have been made, assets for the payment of his debts, are insufficient to pay the debts and liabilities of the estate, he shall immediately file his petition in the circuit court issuing his letters, to settle the estate as insolvent.^ Such petition shall specify: ^East V. Ferguson, 59 Ind. 169; MVoerner Am. Law Admin., § 404. Wright V. Jordan, 71 Ind. 1 ; Smith ' Walker v. Newton, 85 Me. 458, 27 V. Smith, 76 Ind. 236; Stokes v. Atl. 347. Goodykoontz, 126 Ind. 535, 26 N. E. ' Burns' R. S. 1908, § 2947. 391 ; Tarplee v. Capp, 25 Ind. App. 56, 56 N. E. 270. 6o6 INDIANA PROBATE LAW. § 367 First. The amount of unsecured claims filed and allowed against the estate. Second. The amount of unsecured claims filed and pending for allowance against the estate. Third. The amount of personal estate which shall have come into the hands of the executor or administrator, and the value thereof. Fourth. The real estate, if any, and the estate or interest, legal or equitable, liable to be made assets, and the value thereof.; or if the same or any part shall have been sold, the amount realized therefrom, and the value of any portion remaining un- sold. Fifth. The particulars of each lien thereon remaining unsatis- fied of record and amount of indebtedness of the deceased secured thereby, and remaining unpaid, if adjudged by the court, and, if not, the apparent amount due thereon. Sixth. The probable deficiency of the estate to pay the debts and expenses of administration. And such j^etition shall be veri- fied by the oath of the executor or administrator.** § 367. Order and notice. — If, upon the filing of said peti- tion, it shall appear to the court, or judge thereof in vacation, that the estate is probably insolvent, an order shall be made by the court or judge directing the estate to be settled as insolvent, and that notice of such insolvency be given to the creditors re- quiring them to file their claims for allowance. Such notice shall be given by publication for two successive weeks in some public weekly newspaper published in the county in which the estate is pending for settlement, and by posting like notices in three public places in said county and one at the court house door; after such publication and notice, the executor or admin- istrator shall show to the court that such publication and notice have been given as required by this section.'^ § 368. Effect of order on claims during year. — If such es- tate be declared insolvent before the expiration of one year •'Burns' R. S. 1908, § 2948. 'Burns' R. S. 1908, § 2949. § 369 SETTLEMENT OF INSOLVENT ESTATES. 607 from the first issuing of letters thereon and the giving of notice thereof, no claim against it, except expenses of administration and expenses of the last sickness and funeral of the deceased, shall be paid until the expiration of such year."* After an executor or administrator has filed his petition in the proper court to settle his decedent's estate as insolvent, an action cannot be brought against him on a claim due from such decedent, nor may a judgment against such executor or admin- istrator, as such, be collected if recovered. ** But if an executor or administrator, without exercising due care, pays a claim in full when the estate is insolvent, he takes the chance of losing the excess over the amount which the claimant would have received in the dividend among creditors. An agreement, however, made by the claimant in such case with the administrator to refund to him such excess should the estate prove insolvent, is based upon a good and sufficient considera- tion, and will be held valid and binding.^'' § 369. Partial settlement. — At the end of such year, the executor or administrator of the estate shall file in the court a complete account of all the assets received and payments made on account of the estate, as hereinbefore required, as in case of a solvent estate, the amount of money on hands, and the claims due the estate, if any, remaining uncollected; and the court shall proceed to hear and determine the same as in case of an account for partial settlement in a solvent estate.^^ If, upon the hearing of such account, it appear to the court that all the estate liable to be made assets shall have been converted ^Burns' R. S. 1908, § 2955. The 319, 22 X. E. 315; Wheeler v. Haw- executor of an insolvent estate should kins, 116 Ind. 515, 19 N. E. 470; Eg- not apply the personal assets of the bert v. Rush, 7 Ind. 706. Where the estate to the redemption of incum- executor paid too much to the widow, bered real estate simply for the and paid certain claims in full, in widow's benefit. Whitehead v. Cum- action on his bond, he was held not mins, 2 Ind. 58. accountable for "not paying money 'Remy v. Butler, 7 Blackf. (Ind.) into court," nor for "converting 5 ; Joyce V. Hufford, 7 Blackf. (Ind.) money to his own use." State v- 382. Lemonds, 29 Ind. 437. '"Beardsley v. Marsteller, 120 Ind. "Burns' R. S. 1908, § 2956. 6o8 INDIANA PROBATE LAW. § 370 into money, and there be no claims pending against it unallowed, the court shall order the money applied to the expenses of admin- istration, and distributed among the claimants whose claims have been allowed, in the order hereinbefore provided pro rata, among the claimants of each class, subject to the provisions of the next section of the statute.^- In an action by an administrator of an insolvent estate against a person on a claim due from such person to the estate, the de- fendant cannot, in such action, set ofif a claim for services ren- dered the decedent in his lifetime, but may set off the value of any services rendered by him for the estate, or for the administra- tor.^« § 370. Payment of liens. — "If any portion of the moneys shall have been derived from the sale of real estate, and the same shall have been sold subject to liens, the parties holding such liens shall not be entitled to share in such distribution. If such sale shall have been made to discharge liens on tlie real estate, the money derived from such sale shall be first applied to the payment of such liens in the order of their respective pri- orities, whether legal or equitable; and if any portion of the debts secured by such liens remain unsatisfied after the application of the purchase-money, the residue shall be entitled to share in such distribution as general debts. "^* Under this statute a specific lien upon real estate, created by the decedent in his lifetime, where such real estate has been sold by the executor or administrator freed from such lien, the lien follows and attaches to the fund in the hand of the execu- tor or administrator, arising from such sale; and its payment takes precedence of costs of administration, funeral expenses, and expenses of the last sickness. In this case, in construing this statute, the court says: "Upon an application by an ad- ministrator to sell real estate for the payment of debts, the court must make one of two orders where there are liens: (i) To sell subject to the liens; or (2) to sell in discharge thereof. ■ '= Burns' R. S. 1908, § 2957. "Burns' R. S. 1908, § 2958. "^ Ferris v. Mullan, 56 Ind. 164. § 37^ SETTLEMENT OF INSOLVENT ESTATES. 609 When the sale is made subject to a Hen, the lien remains intact, and it is expressly provided by the statute that the lienholder shall not share in the distribution of the fund. When the sale is made to discharge a lien, it is expressly provided that the moneys arising from the sale shall be applied to the payment of the lien."^^ The fact that a decedent's estate has been ordered settled as insolvent makes no difference as to liens of mortgages upon his real estate; they must be paid in fuU.^" § 371. As to set-off against liens. — In the case of Denny v. Moore, 13 Ind. 418, it was insisted that a judgment rendered in favor of the administrator of an estate upon a note given for property purchased at the administrator's sale of the decedent's personal property, and which estate was afterward duly declared insolvent and ordered settled as such, could not, in such a case, be legally set off against a claim upon the estate in favor of the maker or payor of such note, for the reason that an unequal distribution of the effects of such estate would be occasioned thereby. The court say : "The administrator was not bound to set off the judgment against the plaintiff's claim upon the estate, but having done so he could not afterward complain of it. The setting off of the judgment satisfied and extinguished it ; and if the plaintiff thereby received more than the other creditors, it was no fault of his; nor is the judgment, therefore, any the less fully satisfied and discharged. Instead of setting off the judg- ment, the administrator might, undoubtedly, have collected it, and paid the plaintiff only his pro rata share of his entire claim against the estates but having thus set it off, he has precluded himself from exercising such right." § 372. Sale of real estate — Petition pending, — If, at the time of obtaining the order to settle as insolvent-, a petition shall be pending for the sale of the real estate for the payment of debts, or if an order shall have been obtained for such sale, the executor "Ryker v. Vawter, 117 Ind. 425, 20 "Evans v. Pence, 78 Ind. 439. N. E. 294. 39— Pro. Law. 6lO INDIANA PROBATE LAW. i^ 373 or administrator shall j^roceed thereunder to sell the real estate according to the provisions of this act." The terms and notice of such sale, report and continnation thereof, and conveyance shall be governed by the provisions of this act for the sale of real estate for the payment of debts. ^^ § 373. Filing petition, etc. — If there be real estate of the decedent liable to be made assets for the payment of debts, and no petition pending for the sale thereof for such purpose, the petition required shall make like parties defendant thereto, as is required in the petition hereinbefore provided for the sale of real estate to pay the debts of the deceased ; and like notice shall be given to them Of the pendency of the petition, as is required in the case of the other petition.^** Upon the hearing of such peti- tion like proceedings shall be had as in case of petitions for the sale of real estate for the payment of debts as hereinbefore pro- § 374. As to liens on real estate. — If upon such hearing it be found that there are existing liens upon the real estate created or suffered by the decedent in his lifetime, the court, in ordering the sale of such real estate, shall direct whether the same shall be sold to discharge any or all of the liens, or sold sub- ject to all or any of such liens. -^ If a person holding a Hen or liens upon the real estate of the deceased, created or suffered by him in his lifetime, shall file in the court, in the proceedings to sell such real estate before the order for the sale thereof be made, a release of such lien or liens, he shall, upon the allowance of the debt secured by such lien, be entitled to share in the distribution of the assets as a oeneral creditor.-- ts^ § 375. Claim, filed after partial distribution. — If a partial distribution of an insolvent estate be made at the end of the first year among the creditors whose claims were then allowed, and the estate continued for final settlement, and unsecured claims be " Burns' R. S. 1908. § 2954. =" Burns' R. S. 1908, § 2951. ''^Burns' R. S. 1908, § 2953. -"^Burns' R. S. 1908, § 2952. '' Burns' R. S. 1908, § 2950. " Burns' R. S. 1908, § 2959. § 37^ SETTLEMENT OF INSOLVENT ESTATES. 6ll thereafter filed and allowed, such claims shall be entitled to par- ticipate only in the assets of the estate remaining after such par- tial distribution shall have been made."^ § 376. Final settlement — Uncollected assets. — If, at the hearing of such account, it appear to the court that there is money in the hands of the executor or administrator belonging to the estate, and there remain solvent assets thereof not converted into money, and no claims be pending against the estate unal- lowed, the court shall order the distribution of the money on hand as aforesaid, and continue the estate for collection, unless the assets remaining unconverted consist of claims, and any one or more creditors will accept such claims on account of the amount due them respectively in such distribution, in which case the court shall direct the assignment of such claims without recourse, and such estate shall be finally settled, and the executor or administrator discharged from his trust."* § 377. Same — Claim pending. — If, at the time of such dis- tribution, a claim shall be pending against such estate, unallowed, and such estate shall have been converted into money, such court shall order distribution as aforesaid, reserving enough of such money to pay the pro rata share Of such claim in the event it be allowed, and shall continue final settlement of the estate until the ensuing tenn, and from time to time until such claim is finally disposed of, unless the other creditors shall execute to such claimant a bond, with approved surety, for the payment of his pro rata share, if such claim be finally allowed, in which case such estate shall be finally settled.-^ § 378. Same — Claim of surety. — If any surety of a dece- dent is likely to become liable, on account of his principal, for the payment of money in damages or otherwise, but which liability has not accrued at the time of final settlement of such decedent's estate, such surety shall file a statement of such liability in the ^ Burns' R. S. 1908, § 2962. "-' Burns' R. S. 1908, § 2961. '-* Burns' R. S. 1908, § 2960. 6l2 INDIANA PROBATE LAW. § 379 proper court, when the pro rata share of such surety, in the event his claim were allowed, shall be reserved out of the dis- tribution, and the final settlement of such estate continued until such claim be disposed of, unless the other creditors shall execute a bond to him, with sufficient penalty and surety, to be approved by him, conditioned that they will pay the pro rata share of such claim in the event it be allowed; in which case such estate shall be finally settled." § 379. Notice of final settlement. — Upon the filing of an ac- count for final settlement, the creditors of the estate shall be notified of the filing and time of hearing of the final settlement account in the manner hereinbefore provided in case of solvent estates. ^^ " Burns' R. S. 1908, § 2963. " Burns' R. S. 1908. § 2964. CHAPTER XVII. LIABILITY OF HEIRS, DEVISEES AND DISTRIBUTEES. § 380. Common-law liability. § 385. To what extent heir, etc., liable. 381. When liable and to whom. 386. As to parties to the action. 382. An administration necessary. 387. Judgment or decree and its en- 383. When suit must be brought, forcement. and how. 388. When judgment may be an- 384. Damages for breach of cove- nulled. nant. § 380. Common-law liability. — By the common law the title to, and the absolute control over the personal property of a decedent passed to his executor or administrator and it was the duty of such officer to pay the debts, but the real estate of a decedent vested in his heirs free from all debts except those by specialty created by the ancestor. Devisees were not liable for either specialty or simple debts. Such debts as the heir was liable for only extended to the value of the land descended to him, and they were not liens upon the land, nor was there any personal liability imposed upon the heir. So if he had conveyed the land before any proceeding was brought against him on any specialty obligation of the ancestor the creditor had no remedy. Therefore in the absence of any statute heirs are not liable for simple con- tract debts of the ancestor, and are only liable for his specialty debts to the value of the lands which descend to them, and even this liability they may escape by conveying such lands before action brought on the specialty contract.^ The heir or devisee, * Wilson V. Knubley, 7 East 128 ; E. 542 ; Hall v. Martin, 46 N. H. 2,2>7 ; Muldoon V. Moore, 55 N. J. L. 410, Whittelsey v. Brohammer, 31 Mo. 98; 26 Atl. 892, 21 L. R. A. 89n ; Cleven- People v. Brooks, 123 111. 246, 14 N. ger V. Matthews, 165 Ind. 689, 76 N. E. 39; Flasket v. Beeby, 4 East 485. 613 6l4 INDIANA PROBATE LAW. § 38 1 however, took the land subject to any charge or incumbrance agamst it." From this it will be seen that the liability of heirs and devisees is almost wholly of statutory origin, and it is perhaps proper to observe that the statutory changes made in this branch of the law in England, as well as in practically all of the states of the union, have abolished the common-law rules on this subject, and while it is still held that the personal property of a decedent is the primary fund for the payment of his debts, yet his real estate everywhere is now secondarily liable, either in the hands of his personal rep- resentatives, or of his heirs or devisees.^ § 381. When liable and to whom. — Neither an heir, dev- isee, or distributee is liable for more than he receives from a de- cedent's estate, unless in case of intermeddling he has made him- self liable as an executor de son tort.^ So where a creditor seeks to hold him responsible for a debt of such decedent he must allege and prove that the heir has received assets of the debtor's = Ahern v. Steele, 48 Hun (N. Y.) spect of the real property to sell or 517. lease it for the payment of debts if ^ Fisher v. TuUer, 122 Ind. 31, 23 N. necessary. The management of the E. 523; Rinard v. West, 92 Ind. 359; property, payment of debts and ex- Clevenger v. Matthews, 165 Ind. 689, penses of administration, and distribu- Id N. E. 542. tion of the property to legatees and A further departure from the rules distributees, are under the supervision of the common law in this respect is of probate courts, by whose order or the consequence of the American sys- decree the rights of heirs, devisees, tem of administration, according to legatees, and next of kin are deter- which all testamentary matters, in- mined, and in most states they may eluding payment of decedent's debts also determine whether the property and legacies, as well as the distribu- passes to the recipients free from tion of the residue of the estate, are claims of creditors or not, saving to placed under the control of a class of the creditors whose contingent claims courts unknown to the common law. have not become absolute before the The general outlines of this theory close of the administration their re- demand the speedy payment of the course against the property descended decedent's debts, and distribution to or administered. Woerner Am. Law legatees and distributees, to accom- Admin., § 575. plish which the executor or adminis- * North-Western Conference v. My- trator is clothed with the legal title ers, 36 Ind. 375 ; Wilson v. Davis, 11 to all personalty, and a power in re- Ind. 141. §381 LIABILITY OF HEIRS, DEVISEES, DISTRIBUTEES. 615 estate;^ and since real and personal property are both liable for debts the heirs will be liable to the value of both kinds of property received by them." Our statute prescribes that 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; provided that suit upon the claim of any creditor out of the state must be brought within two years after such final settlement.^ The rule that an heir, etc., is bound only to the extent of the assets he has received from the ancestor's estate is hardly ap- plicable where a sole heir or legatee gives bond to pay debts and takes the entire estate without administration.® The purpose and policy of this statute is to afford a remedy against the heirs, devisees, and distributees of an estate, in favor of those creditors of such estate whose claims remain unpaid, and who have been prevented from proving their demands prior to the final settlement of the estate, on account of infancy, in- sanity, or non-residence. The claims of such persons, however, may be presented for allowance and adjustment like any other claims against a decedent's estate, and if adjusted and allowed, they stand upon the same footing afterwards as other adjusted claims.^ ''Rinard V. West, 92 Ind. 359; Tick- ceased debtor, is bad on demurrer, nor V. Harris, 14 N. H. 272, 40 Am. Rinard v. West, 92 Ind. 359; Kelley v. Dec. 186. Adams, 120 Ind. 340, 22 N. E. 317. If ' State V. Lewellyn, 25 Tex. 797. a non-resident files a claim against ' Burns' R. S. 1908, § 2965. The suit the estate, he is no longer out of the against heirs, etc., authorized only Hes state within the meaning of this see- where there has been administration tion. Yoast v. Willis, 9 Ind. 548 ; Bu- of the deceased debtor's estate, and senbark v. Healey, 93 Ind. 450. the defendants have received assets * Colwell v. Alger, 5 Gray (Mass.) therefrom, and the plaintiff's claim re- €1 ; Thomas v. Bonnie, 66 Tex. 635, 2 mains unpaid ; and a complaint which S. W. 724. does not aver these facts, and does not ' Silvers v. Canary, 114 Ind. 129, 16 contain such averments as would make N. E. 166. A complaint against the a good cause of action against the de- sole heir and legatee of a decedent. 6l6 INDIANA PROBATE LAW. § 38 1 One, who by mistake has failed to get credit from the admin- istrator for payment made on a debt to the decedent, cannot, after final settlement, recover the amount of such payments from the heirs.^** The widow of a deceased debtor is not liable, under these statutes, for property she has received by virtue of her marital rights.^^ The claim of a creditor who may under the statute proceed against the heirs, devisees and distributees of a decedent, is in no respect a lien upon the property received by them. Their liability is personal, and is limited by the amount of property received by them from the decedent ; and where an heir dies against whom such a claim exists, it stands on a footing with other general claims against his estate, and must, like such gen- eral claims, be filed against such estate. His heirs cannot be pro- ceeded against under this statute, except by showing that his estate had been fully administered and finally settled, and that the claimant was insane, an infant, or out of the state for six months prior to its settlement.^" If the claimant has duly filed his claim against the estate, he can have no right of action against heirs, etc., under these statutes." averring an indebtedness of the de- E. 1125; Yoast v. Willis, 9 Ind. 548; ceased to the plaintiff, that the estate Silvers v. Canar\-, 114 Ind. 129, 16 X. was finally settled in due course by E. 166. A creditor, who, within six an executrix, the plaintiff being absent months next before the final settle- six months prior to such settlement ment of a decedent estate, has prose- and still absent from the state, and cuted his claim before the court of that the defendant, as heir and lega- this state having jurisdiction of the tee, had received as assets from the estate, is not authorized to- sue the estate a sum named, was good on de- heirs, devisees or distributees. Busen- murrer, the suit having been brought bark v. Healey, 93 Ind. 450. One who, within two years from such final set- by mistake, fails to get the benefit of tlement. McCurdy v. Bowes, 88 Ind. a credit indorsed upon a note held 583. against him by an administrator and " Dickey v. Tyner, 85 Ind. 100. does not discover the fact until after "Barnard v. Cox, 25 Ind. 251. the final settlement of the estate, has "Rinard v. West, 92 Ind. 359; Ri- no cause of action against the heirs or nard v. West, 48 Ind. 159; Wood v. distributees of the estate. Dickey v. Leland, 1 Mete. (Mass.) 387. Tyner, 85 Ind. 100. ^' Stults V. Forst, 135 Ind. 297, 34 N. § 2)^2 LIABILITY OF HEIRS, DEVISEES, DISTRIBUTEES. 617 The right bestowed by this statute being in derogation of the common law, one who attempts to avail himself of it must bring himself without excuse, fully within the conditions upon which the right rests. "The statute which gives the right contains its own limitations, and we can ingraft no exceptions upon it. The language is clear and sweeping, and no exceptions are created, — nothing remains for the court but to apply the law as it is writ- ten."" § 382. An administration necessary. — It is necessary, in order to charge the heirs, devisees and distributees in an action based on this statute, that an administration of the estate should he had, and such administration must be alleged in the com- plaint.^^ It is the settled law of this state that a creditor of a decedent's estate must proceed to enforce his claim against the estate through an executor or administrator, and cannot be allowed to sue the heirs, etc., where there has been no executor or admin- istrator appointed ; nor can he maintain a suit against the heirs, distributees, or devisees, where there has been an executor or administrator, without showing a valid excuse for not proceed- ing against the decedent's estate before its final settlement.^® The statute seems to contemplate cases where there has been an executor or administrator of the estate, for in no other case could there be final settlement. The creditor may take out let- ters if no preferred party shall do so within a limited time, and there would then be no necessity for proceeding against heirs in the manner pointed out by statute. The statutes make ample provision for the filing and collect- " Fisher v. Tuller, 122 Ind. 31,23 Ind. 378; Chandler v. Chandler, 78 X. E. 523; Clevenger v. Matthews, 165 Ind. 417; Rinard v. West, 92 Ind. 359; Ind. 689, 76 N. E. 542. King v. Snedeker, 137 Ind. 503, Z7 N. " Lockhart v. Schlotterback, 12 Ind. E. 396 ; Harmon v. Dorman, 8 Ind. App. 683, 40 N. E. 1109. App. 461, 35 N. E. 1025. By the com- " Wilson V. Davis, 2,7 Ind. 141 ; Cin- mon law the heir is not liable for the cinnati &c. R. Co. v. Heaston, 43 Ind. debts of the ancestor. Fisher v. Tul- 172; Leonard v. Blair, 59 Ind. 510; ler, 122 Ind. 31, 23 X. E. 523; Craven Baugh V. Boles, 66 Ind. 376; McCoy v. v. State, — Ind. App. — , 97 X. E. 1021, Payne, 68 Ind. 327 ; Carr v. Huette, 7Z 6l8 INDIANA PROBATE LAW. § 383 ing of all claims against a decedent's estate whether the claims be due or not, and a claimant who, not being under any statutory- disability, fails to avail himself of these provisions will be barred of any right of action on his claims against the heirs of a de- ceased debtor.^ ^ The heirs of a decedent are not liable for his debts until after administration is had upon his estate, and all the assets of such estate in the hands of the executor or administrator have been exhausted and the estate finally settled.^^ And if a claim has been presented to the executor or admin- istrator, and the adjudication involved in the final settlement of the estate, the heirs cannot be sued upon such claim so long as such final settlement remains in force. ^'^ The heir or devisee having the right to insist that the debts of a decedent be paid by the executor or administrator if there be assets of the estate enough for that purpose, a complaint by a creditor must come within the terms of this statute."" § 383. When suit must be brought, and how. — A creditor who labors under the disability of non-residence six months prior to the final settlement of the estate of his deceased debtor suffi- ciently removes that disability to pennit the limitation prescribed by this statute to run against him, by filing his claim against the estate in the proper court in this state ; and although such creditor afterward voluntarily dismisses such claim, it will not stop the running of such statute. A creditor out of the state must have been absent during the whole of the six months prior to the final settlement of the estate. And any absentee or non-resident who prosecutes any suit in any court of this state against such " Cincinnati &c. R. Co. v. Heaston, N. E. 166. A creditor of a decedent's 43 Ind. 172. An action cannot be main- estate must proceed to enforce his tained by a creditor of a decedent's claim against it through an adminis- estate against the widow and heirs of tration, and cannot, in the first in- such decedent, to recover any of his stance, sue the heirs, devisees or lega- ordinary debts. Carr v. Huette, IZ tees where there has been no, adminis- Ind. 378; Chandler v. Chandler, 78 tration. King v. Snedeker, 137 Ind. Ind. 417; Rinard v. West, 92 Ind. 359; 503, Z1 N. E. 396. Lovering v. King, 97 Ind. 130. '" Muller v. Fowler, 34 Ind. App. 66, '"Barnard v. Cox, 25 Ind. 251. 71 N. E. 512. " Silvers v. Canary, 114 Ind. 129, 16 383 LIABILITY OF HEIRS, DEVISEES, DISTRIBUTEES. 619 estate, either in person or by attorney, brings himself within the jurisdiction of the court and is regarded as being present in court, and no suit will lie at the instance of any such claimant against the heirs, devisees and distributees of such estate."^ A non-resident creditor, or one out of the state for six months prior to the final settlement of his debtor's estate, is given two years by this statute in which to bring his action against the heirs, etc. ; and unless he asserts his claim within that time he will be barred of his remedy without regard to whether such heir re- ceived property from such deceased debtor or not." A non-resident surety who has paid the debt cannot enforce contribution against the heirs and distributees of a deceased co- surety after the lapse of two years from the final settlement of the latter's estate, though such surety may have had no knowledge of the insolvency of the principal, and no notice of the non-pay- ment of the notes, until more than two years after the final settle- ment of the estate of such deceased co-surety."" ^ Yoast V. Willis, 9 Ind. 548 ; Busen- bark v. Healey, 93 Ind. 450; Voris v. State, ex rel., 47 Ind. 345. Fisher, and Owen Tuller, as partners, carried the United States mails in Missouri, un- der a contract with the government. Property of the partnership having been captured and destroyed by con- federate soldiers during the rebellion, in 1866, the prosecution of the claim for the money was intrusted to Tuller, who received from the government, in 1867, in payment of the claim, twenty thousand dollars, and appropriating it to his own use, conceaHng from Fish- er the fact of its receipt. After the dissolution of the partnership, in 1866, Tuller informed Fisher that the claim had been disallowed, and finally dis- posed of. Fisher, relying upon the statements of Tuller, remained in ig- norance of the facts until 1884. Tul- ler having died in 1873, his estate was finally settled in 1879. Fisher has been a non-resident since 1860. An action was brought against one of the heirs in 1886. Held, that the facts stated, while sufficient to avoid the bar of the statute of limitations if the case were between Tuller, or his adminis- trator, and the plaintiff, there can be no recovery against the heir, the ac- tion against him, which is statutory, being barred by the proviso relating to the liability of heirs, which requires the action to be brought within two years. Fisher v. Tuller, 122 Ind. 31, 23 N. E. 523. "^ Freeman v. State, ex rel, 18 Ind. 484; Stults v. Forst, 135 Ind. 297, 34 N. E. 1125; Fisher v. Tuller, 122 Ind. 31, 23 N. 523. ^^Clevenger v. Matthews, 165 Ind. 689, 76 N. E. 542, disapproving, modi- fying and distinguishing Voris v. State, 47 Ind. 345 ; Stevens v. Tucker, 87 Ind. 109; Blair v. Allen, 55 Ind. 409; Harmon v. Dorman, 8 Ind. App. 461, 35 N. E. 1025 ; Whittern v. Krick, 31 Ind. App. 577, 68 X. E. 694. 620 INDIANA PROBATE LAW. § 384 A complaint against heirs, distributees, or devisees, under the above statute, to be sufficient must allege facts showing that the plaintiff had a valid and enforcible demand against the decedent at the time of his death, and that such claim remains unpaid after final settlement of such estate and at the time of commencing the action ; a final settlement of the estate must be alleged, and the date of such settlement, and that during six months prior to such final settlement the plaintiff "was insane, an infant, or out of the state," according as he may rely on one or another of the disabil- ities as saving his right to sue; that there were heirs, devisees, or distributees, and that such heirs, devisees or distributees have received assets from the estate of the deceased debtor, and the amount of such assets ; and such other facts as would constitute a good cause of action against the debtor if he were living. ^'^ § 384. Damages for breach of covenant. — Lineal and col- lateral warranties, with all their incidents, are abolished; but the heirs and devisees of ever>' person who shall have made any covenant or agreement shall be answerable upon such covenant or agreement to the extent of property descended or devised to them, and in the manner prescribed by law."^ Since lineal and collateral warranties have been abolished, a claim for damages for breach of covenants, which claim, by reason of the disabilities of infancy, insanity or non-residence, was not and could not have been filed against the estate of a de- ceased covenantor prior to the final settlement of such estate ; or by reason of the fact that such breach did not occur until after a time subsequent to the death of such covenantor, and subsequent to the final settlement of his estate, falls within the purview of this statute, and the heirs, devisees and distributees of such cov- ^Rinard v. West, 48 Ind. 159; Mc- ages to the covenantee for a breach of Shirley v. Birt, 44 Ind. 382 ; McClure the decedent's covenant, occurring V. McClure, 19 Ind. 185; Rinard v. after the decedent's death and after West, 92 Ind. 359. Muller v. Fovi^ler, the final settlement of the decedent's 34 Ind. App. 66, 71 N. E. 512. estate. Harmon v. Dorman, 8 Ind. '' Burns' R. S. 1908, § 3956. The de- App. 461, 35 N. E. 1025. visees of a decedent are liable in dam- § 384 LIABILITY OF HEIRS, DEVISEES, DISTRIBUTEES. 62 1 enantor are liable for such damages to the extent of the property received from him.-® Where such claim did not accrue in time to file it against the estate, and the claimant did not labor under any of the disabilities mentioned in this statute, the question as to whether such claim- ant had a remedy at all was discussed and decided in favor of the claimant. The court says : "Upon full and careful consideration we have come to the conclusion that the legislature could not have meant to leave a meritorious class of rights without remedies for their breach. The opposite conclusion in cases like the pres- ent would very much impair the faith and weaken the force in warranties of land titles, and become a frightful source of un- .easiness, to otherwise peaceable possession."^' In an action for such damages it is not necessary for the complaint to show that the damages are due and unpaid. And a devisee is liable for a breach of the decedent's covenant, even where such breach occurred after the death of the decedent and after the final settlement of his estate.-* The heirs of a surety upon a penal bond are liable for breaches of such bond occurring after the settlement of the estate of the surety.^® Unless the two cases last cited may be said to rest upon the common-law liability of the heir for the specialty debts of the ancestor, they must be treated as modified and in effect practically overruled by the case of Clevenger v. Matthews, 165 Ind. 689. It will be noticed, however, that this case rests upon a simple con- tract debt of the ancestor and not upon a sealed obligation.^" In Wysong v. Nealis, 13 Ind. App. 165, on page 174, it is said, in speaking of the breach of the covenant of warranty in a deed, that "if the breach occurred before a final settlement, then it was a proper claim against the estate. If it occurred afterward, then ** Hartman v. Lee, 30 Ind. 281 ; Blair "* Harmon v. Dorman, 8 Ind. App. V. Allen, 55 Ind. 409. 461, 35 N. E. 1025. =" Blair v. Allen, 55 Ind. 409 ; Stev- " Voris v. State, 47 Ind. 345 ; Stev- ens V. Tucker, 87 Ind. 109 ; Harmon v. ens v. Tucker, 87 Ind. 109. Dorman, 8 Ind. App. 461, 35 N. E. ^ Woerner Am. Law Admin., § 574. 1025. 622 INDIANA PROBATE LAW. § 385 the heirs and legatees would be liable to the extent of the property received by them."^^ § 385. To what extent heir, etc., liable. — The common-law liability of the heir, devisee, or distributee is not changed by our statute. In no case can he be held liable beyond the extent of the assets received by him from the ancestor. The statute provides that no more shall be recovered from any defendant, in an action under the above statute, than his just proportion of any such debt, whether he has become liable therefor on account of real estate or any interest therein, or on account of personal assets, unless the others are beyond the reach of personal process, or unless, after due diligence, the amount cannot be recovered from the others who are liable with him; in which case he shall be liable therefor to tlie extent of the real and personal assets received by him.^^ These statutes contain the only provisions making the heirs, devisees and distributees of a deceased debtor liable, on account of the property received by them from his estate, for the debts of such decedent f^ but such heir, devisee or distributee is not bound in any case for such debts beyond the amount of the assets de- scended to him.^* The widow of such a debtor is not such an "heir" as will render her liable under these statutes. ^^ The heirs, being the owners by descent of a decedent's real estate, cannot be charged with the debts of such decedent at the pleasure of the executor or administrator of his estate.^'' The " Muller V. Fowler, 34 Ind. App. 66, enforce a vendor's lien for a debt due 71 N. E. 512; Whittern v. Krick, 31 from the decedent on the purchase of Ind. App. 577, 68 N. E. 694. real estate. Chandler v. Chandler, 78 '-Burns' R. S. 1908, § 2970. In an Ind. 417; Lord v. Wilcox, 99 Ind. 491. action against the widow and heirs of ^"^ Ratcliff v. Leunig, 30 Ind. 289. a decedent to enforce a vendor's lien "Bryan v. Blythe, 4 Blackf. (Ind.) against the real estate of the decedent, 249; Stanford v. Stanford, 42 Ind. it is error to render judgment direct- 485; McShirley v. Birt, 44 Ind. 382; ing the sale of the real estate without North Western Conference v. Myers, first exhausing the personalty, unless 36 Ind. 375 ; Muller v. Fowler, 34 Ind. the complaint aver the insufficiency of App. 66, 71 N. E. 512. the personal property to pay the debt. ^' Barnard v. Cox, 25 Ind. 251. Query, whether an action will lie ^° Jennings v. Kee, 5 Ind. 257. against the widow and heirs alone to § 386 LIABILITY OF HEIRS, DEVISEES, DISTRIBUTEES. 623 property of the ancestor which descends to his heirs, is hable for the payment of his debts, but these debts are in no sense the debts of the heirs. As we see by the statute it is only in certain contingencies, after the estate has been finally settled, where the heirs can be held liable for such debts. ^' If, by the will of the deceased, any part of his estate, or any one or more of the legatees or devisees, shall be made exclusively liable for the debt, in exoneration of the estate or of the devisees or legatees, the provisions of the will shall be complied with in that respect, and the real estate, and the persons so excepted by the will shall be liable only for so much of the debt as cannot be re- covered from those first chargeable therewith.^* Persons who inherit property from heirs of a decedent are also liable for the amount of property received. It is the receipt of property from the deceased debtor which fixes the liability, and if by another descent cast such property comes to the hands of one not an immediate heir, or not of the blood of such debtor, the rule does not change. The object of the statute is to enable the creditor to fasten the liability upon the party who has received property by descent out of which he is entitled to be paid; and it can make no difference whether such property is real, personal, or both.^^ § 386. As to parties to the action. — As has been seen the heirs, devisees, distributees, and legatees are liable to creditors for the full amount of property received by them whether the property was real or personal or both, but whether the action must be brought against all jointly, or whether the creditor can hold each separately for his proportion of the debt, or hold any one or more of them liable for the whole of the debt and compel those from whom a recovery is had to seek contribution, is a question about which the cases, and the statutes in the various states, differ. Our statutes are not perfectly clear upon this subject, and the "Weakley v. Conradt, 56 Ind. 430. Wood v. Leland, 1 Mete. (Mass.) 387; '' Burns' R. S. 1908, § 2971. Hall v. Martin, 46 N. H. 337. ^'Rinard v. West, 48 Ind. 159; 624 INDIANA PROBATE LAW. § 386 Supreme Court in one case says: "Under the authorities it is quite doubtful whether one heir can be sued where there are several, but we do not pass upon this question."^*^ The statutes are as follows: Such suit shall be instituted in any court of competent jurisdiction against all who are liable who can be reached with process, and their representatives by petition; and the costs of such suit shall be apportioned among the defendants in proportion to the amount recovered of each of them." The word "representatives" used in this section of the statute refers only to the executors or administrators of such heirs or devisees, and does not mean their heirs/^ Heirs, devisees and distributees may be sued jointly in any such suit, and no suit shall be barred or dismissed for want of includ- ing all the persons as defendants who might have been included ; and in any stage of the proceedings the court may award to the complainant proper process to bring in other parties, and may allow such amendments as may be necessary to charge them as defendants, on such terms as the court shall think reasonable." No such suit shall be delayed, nor shall the remedy of a claim- ant 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/* *»Fisher V. Tuller, 122 Ind. 31, 23 N. sons inheriting property from the E. 523. heirs of a decedent are liable for debts *^ Burns' R. S. 1908, § 2966. Claims the same as such heirs. Rinard v. against heirs must be enforced within West, 48 Ind. 159. Heirs cannot be the time prescribed by statute. Free- sued for the debts of the decedent un- man V. State, 18 Ind. 484; Fisher v. til after the settlement of his estate. Tuller, 122 Ind. 31, 23 N. E. 523. Stevens v. Tucker, 73 Ind. 73. Unless Heirs of a decedent can only be held there is administration on the estate liable for debts under the contingen- the heirs cannot be held liable for the cies mentioned in the statute. Ratcliff ordinary debts of the decedent. Chan- V. Leunig, 30 Ind. 289; Cincinnati &c. dler v. Chandler, 78 Ind. 417. R. Co. V. Heaston, 43 Ind. 172; Rinard " Burns' R. S. 1908, § 2973. Where V. West, 48 Ind. 159; Leonard v. Blair, minors are represented, in proceedings 59 Ind. 510; Rinard v. West, 92 Ind. relating to the settlement of estates, 359. by their guardians at law, or guardians *^ Rinard v. West, 92 Ind. 359. ad litem, and the proceedings are con- "^ Bums' R. S. 1908, § 2972. Per- ducted in good faith and are free § 387 LIABILITY OF HEIRS, DEVISEES, DISTRIBUTEES. 625 § 387. Judgment or decree and its enforcement. — Unless it shall appear to the court that the real estate which has descended or was devised to any such defendant, and on account of which the creditor is entitled to recover against him, was alienated by him in good faith subsequently to the final settlement of the estate of the ancestor or devisor by the executor or administrator, and before the commencement of such suit, the court may decree that the debt of the claimant shall be levied upon such real estate ; and ever}^ such decree against the same shall have preference as a lien thereon to any judgment or decree obtained against such defend- ant personally for any debt or demand in his own right/^ But no real estate thus descended or devised to such heir or devisee, and alienated by him in good faith after the final settle- ment of the estate of the ancestor or devisor, and before the commencement of such suit shall be liable to execution, or in any manner affected by a decree against such defendant in the prem- ises ; but he shall be personally liable on such execution or decree for the amount proper to be recovered against him, as for his own debt, not to exceed the value of such real estate, unless he be liable on account of personal assets, in which case he shall also be liable to an amount not to exceed the value of such assets/*^ When such real estate has been alienated by any such defend- ant, but is liable to be reached by such decree, the same shall not be sold by virtue thereof until the other property of the defend- ant, subject to execution, has been exhausted; and, in that case, any deficiency shall be supplied by resort to the property thus alienated.*^ When a decree shall be rendered against defendants who are infants, no execution issued thereon shall be executed against from fraud, such minors cannot, after rected. Edwards v. Beall, 75 Ind. 401. arriving at age, have the proceedings A minor may bring a suit to correct set aside. Seward v. Clark, 67 Ind. proceedings on account of fraud or 289. Selling property that does not mistake before he arrives at age. Ed- belong to a decedent, and which de- wards v. Beall, 75 Ind. 401. scends to an heir, is such a mistake as ^ Burns' R. S. 1908, § 2967. will authorize such heir, when a ^ Burns' R. S. 1908, § 2968. minor, to have the proceedings au- " Burns' R. S. 1908, § 2969. thorizing such sale set aside and cor- 40— Pro. L.wv. 626 INDIANA PROBATE LAW. § 388 them until the expiration of one year after the rendition of such decree; but such execution may be executed against other defend- ants in the same suit, who are of full age, as in other cases; and whenever any heir, devisee, or distributee shall have been com- pelled to pay more than his just proportion, he may have his action severally or jointly with others to recover of the other heirs, devisees, or distributees liable therefor, the amount which he may have thus been compelled to pay/^ § 388. When judgment may be annulled. — In all suits and proceedings instituted under the provisions of this act in which infants may be plaintiffs, complainants, or defendants, such in- fants shall appear by their guardian at law or guardian ad litem, appointed by the court; and such suits or proceedings, if con- ducted in good faith, shall not be liable to be opened by such infants upon arriving at full age.^'' Any such infant, after arriving at full age may, within three years thereafter, upon the proper proceedings being instituted by him, have any judgment, order or decree, opened or annulled, or set aside, if he can show that the same was obtained by mistake or through fraud. ^'^ It is error to render a decree against an infant defendant without proof of the allegations in the complaint or petition. A guardian ad litem cannot, on behalf of an infant defendant, admit the truth of such allegations nor consent to a decree with- out proof. ^^ In one case it is decided that the entire law of the state on this subject is compactly stated or clearly implied in these two sections of the statute, and one is the supplement of the other. It is held that if the proceedings of a proper court in the settlement of a decedent's estate have been conducted in good faith and are free from mistake or fraud, and the infant parties to such proceedings "^ Burns' R. S. 1908. § 2974. 8 Blackf. (Ind.) 300; ^lartin v. Starr, *" Burns" R. S. 1908. § 2975. 7 Ind. 224 ; McEndree v. McEndree, '" Burns" R. S. 1908. § 2976. 12 Ind. 97; Blake v. Douglass, 27 Ind. =' Grain v. Parker, 1 Ind. 374 ; Ward 416. V. Kelly, 1 Ind. 101 ; Hough v. Doyle, § 388 LIABILITY OF HEIRS, DEVISEES, DISTRIBUTEES. 627 have appeared therein by their guardian at law or guardian ad litem, appointed by such court, then such proceedings are final and are not liable to be opened up, or annulled, or set aside by such infants upon arrival at full age. If, however, such proceedings have not been conducted in good faith, and if the infant parties have not appeared therein by their guardian at law or guardian ad litem, then such proceedings are not necessarily final, but they are liable to be opened by such infants upon arriving at full age. In such a case the remedy of such infant, upon his arrival at full age, is not an appeal to the Supreme Court from the proceedings complained of; but in a direct proceeding to be instituted by such infant, at any time within three years after he becomes of full age, he may have any judgment, order or decree, made or ren- dered in and during the final settlement of the estate, "opened or annulled or set aside, if he can show that the same was obtained by mistake or through fraud."" ■"Seward v. Clark, 67 Ind. 289. A court when the guardian ad litem is guardian ad litem cannot be appointed appointed no notice or summons is for an infant, nor can any judgment be necessary. Horner v. Doe, 1 Ind. 130, rendered against the infant until after 48 Am. Dec. 355; Alexander v. Frary, summons has been issued and served 9 Ind. 481. A judgment against an in- upon such infant. Robbins v. Robbins, fant without actual proof is error. De 2 Ind. 74; Martin v. Starr, 7 Ind. 224; La Hunt v. Holderbaugh, 58 Ind. 285; or, if a non-resident, publication had Richards v. Richards, 17 Ind. 636; against him. Carver v. Carver, 64 Ind. Blake v. Douglass, 27 Ind. 416; Cosby 194 ; Gefken v. Graef, 77 Ga. 340. But v. Powers, 137 Ind. 694, 37 N. E. 321. if the infant himself is present in CHAPTER XVIIL SUITS BY AND AGAINST EXECUTORS AND ADMINISTRATORS. § 389. Suits against. § 400. Same— Administrator's right. 390. Same— On individual promise. 401. Construing statutes together. 391. Liability for torts. 402. The damages, and how meas- 392. Power to maintain suits. 'ured. 393. Right to sue on notes, mort- 403. Distribution of the damages. gages, etc. 404. Right of set-off. 394. Right to sue on covenants. 405. Judgments against executors, 395. Evidence of power to sue — etc. Pleadings, copy of letters, etc. 406. Proceedings after judgment. 396. Survival of actions. 407. Effect of death of party to 397. Limitation of actions. judgment. 398. Joinder of causes— Right of 408. Proceedings — How long de- third person to sue. layed. 399. Actions for injuries resulting 409. Revivor of judgment. in death. 410. Liability for costs. § 389. Suits against. — At common law an executor or ad- ministrator was bound by all the contracts of the decedent and could be compelled to perform them, or to respond in damages for their breach, unless the contract was of such a nature that it involved the prosecution of the business of the deceased, or was otherwise incompatible with the duties of the executor or admin- istrator in settling the estate. All claims founded on any obliga- tion, contract, debt, covenant, or other duty of the decedent upon which he might have been sued in his lifetime, survived his death and were en forcible against his executor or administrator, and this liability was not dependent on such officer being named in the contract, but was cast upon him by the law as one of the conse- quences of his being the personal representative of the deceased. 628 § 389 EXECUTORS AND ADMINISTRATORS' SUITS. 629 An exception to this rule existed in case of contracts which called for personal services of the deceased.^ But as the statute now makes ample provision for the presenta- tion, allowance and payment of claims and demands against the estate of a decedent, an occasion, will seldom, if ever, arise dur- ing the course of the administration of the estate, when a suit in the regular form will lie against an executor or administrator. The whole purpose and theory of the law is against it. The statute bars almost all actions which may be regularly brought against the personal representatives of a decedent. No action shall be brought by complaint or summons against the executor or administrator of an estate for the recovery of any claim against the decedent; or upon any contract executed jointly, or jointly and severally, by such decedent and any other person ; or upon any joint judgment founded upon such contract.^ The holder of any such joint contract must enforce its collec- tion against the estate in the regular way and not by civil suit.^ But executors and administrators are subject to garnishment at the suit of any attachment creditor of the person who has money or choses in action in the hands of such executor or ad- ministrator at the time of the service of such garnishee process, in the same manner and to the same extent as other persons are liable to be garnished in attachment proceedings.* The unascertained shares of a decedent's estate in the hands of the executor or administrator for distribution are subject to gar- ^ Touch., 482 ; Williams Extrs., proceed against the administrator 1721; Went. Off. Extrs., 229, 243; alone, unless objection were made by Dickinson v. Calahan, 19 Pa. St. 227; motion before pleading. Corbaley v. Wheatley v. Lane, 1 Saund. 216a; State, 81 Ind. 62. Harrison v. Sampson, 2 Wash. (Va.) ' State v. Cunningham, 101 Ind. 461. 155. An administrator cannot, under the * Burns' R. S. 1908, § 2829. Prior to statute, be joined as defendant in a the enactment of this statute in 1881 an suit on a joint and several bond exe- ordinary suit might be brought against cuted by his intestate, and the pen- a principal debtor and the administra- dency of such a suit is no reason for tor of the estate of his deceased delay of final settlement. Norwood v. surety; and if the principal were not Harness, 98 Ind. 134, 49 Am. Rep. 739. served with process, the suit might * Burns' R. S. 1908, § 977. 630 INDIANA PROBATE LAW. § 39O nishment in a suit at the hands of a creditor of the person to whom any such share is paya1>le.^ If, however, a defendant die after a suit has been regularly brought against him l)y complaint and process, such action may be continued to final judgment against his executor or adminis- trator.** An action will not lie against an administrator in one state upon a decree obtained against a different administrator of the same estate appointed by the authority of another state. A noted writer says: "Where administrations are granted to different persons in different states, they are so far deemed independent of each other, that a judgment obtained against one will furnish no right of action against the other, to affect assets received by the latter in virtue of his own administration ; for in contempla- tion of law there is no privity between him and the other admin- istrator."' § 390. Same — On individual promise. — An administrator who undertakes in writing to pay the debt of his intestate when assets of the estate come into his hands, is liable individually upon such undertaking upon the receipt of such assets; or if the undertaking is based upon a consideration which accrued after the death of such intestate, and is to do a thing which the estate was not bound to do, it will be regarded as the original contract or promise of the administrator, and he will be held personally liable. A promise made by him will bind him personally, but not " Stratton v. Ham, 8 Ind. 84, 65 Am. thereon. State v. Cunningham, 101 Dec. 754; Simonds v. Harris, 92 Ind. Ind. 461. 505. An action cannot be commenced ' Burns' R. S. 1908, § 272. Lawson by complaint and summons against an v. Newcomb, 12 Ind. 439. Executors executor or administrator and any and administrators may be joined as other person or persons, or his or their defendants in actions with other de- legal representatives, upon any con- fcndants in cases where the decedent tract executed jointly, or jointly and might be joined if living. Braxton v. severally, by the decedent and such State, 25 Ind. 82; Owen v. State, 25 other person or persons ; but the hold- Ind. 107. er of such contract can enforce its ^ Story, Conflict of Laws, § 522; collection against the estate of such Slauter v. Chenowith, 7 Ind. 211; decedent only by filing his claim Stacy v. Thrasher, 6 How. (U. S.) 44, 12 L. cd. 337. 390 EXECUTORS ANH ADM I MSTUArOKS SUITS. ^>3t the estate, unless facts are stated showing- the right to charge the estate, or tliat the consideration for the pronn'sc arose prior to the intestate's death." While an executor or administrator has no power to hind (he estate, yet an action may Ije maintained against him in his repre- sentative character, upon a promise made in that character to dis- charge an existing liahility against the estate." I'.iil in causes of action that have occurred since the tleath of the dcixdi-nl, the personal representative will he liahle individually.'" He is also personally liahle on his note for money hmrowcd for the estate." The mere fact thai \w di-srrihcs himself as executor or administrator in a note, hond, etc., does iml limit his personal liahility, unless he e.Kpressly stipulates to pay out of assets of the estate.'- A promi.se hy an e.xecutor or administrator to i)ay a deht of "Mills V. Kuykcndall, 2 iilackf. (Ind.) 47; Carter v. Thoiiias, 3 Iiid. 213; Cornthwaitc v. l-'irst Nat. liank, 57 Ind. 268; lloldcrbauKh v. Turpiii, 75 Ind. 84, 39 Am. Rep. 124; Moody v. Shaw, 85 Ind. 88. Coniplainl in two paraj^raijlis, in tlie ordin.irv form, against an ailministralor : (1) Aik'g- ing a contraet vvitli tlie defenckmt to saw for him certain logs of the de- cedent into hnnl)cr at a certain price; that the work was done and the de- fendant failed to pay on request. (2) Alleging a promise of the defendant to pay a certain sum for sawing lum- ber for the decedent in his lifetime, which lumber remained in the plaint- iff's possession, and on which he held a lien for the sawing; that the lumber was delivered to the defendant on his promise to pay for the sawing, and that on request he failed to pay. Held, that both paragraphs were good on demurrer. Bolt v. Barr, 95 Ind. 243. •Austin V. Munro, 47 N. Y. 360; Davis V. Frencli, 20 Me. 21, 37 Am. Dec. 36. The plaiiililT .sold ;uid dcliv- riH'(| ;i iiiiiiniiiHnt lo A. ill liis lifclime. After A.'s ileatii, ihc ;niiiiiiiisn\i(()r of his estate wrote a icllt r lo llie i)laintil'f wliicli ronl.iiiuil llic following state- nuiil : "I will liK' llic l)ill for yon (;igaiiisl lilt.' I'slali') and ^''1 ''i^ iiiiuli as the estate will pay, and I will settle the rest." The letter was signed by tile administrator as an individual, and. not otherwise. I lild, that there was no consideralioii lo support the promise contained in the k:Uer lo set- tle the balance of the claim against the estate-, ,111(1 tli.'it ihe administrator vv;is not li.ililr ilii-n-oii, Vo^cl v. ()'- Toole, 2 Ind. App. 196, 28 N. E. 209. '"May V. May, 7 I'la. 207, 68 Am. Dec. 431 ; Kirclmer v. McRae, 80 N. Car. 219. *' Merchants' Nat. Bank v. Weeks, 53 Vt. 115, 38 Am. Rep. 661. " Patlersf)n v. Craig, 1 lia.xt. (Teim.) 291; .Studebaker Bros. Mfg. Co. V. Montgomery, 74 Mo. 101 ; Sdmiiltler v. Simon, 101 N. Y. .S.SI, 5 N. K AS2, .S4 Am. Rop. 737. 632 INDIANA PROBATE LAW. § 391 his decedent, or to answer for damages out of bis own estate is within the statute of frauds, and unless upon a sufficient consid- eration and reduced to writing will not bind him. The rule ap- pears to be that where the cause of action existed against the deceased, the executor or administrator may make himself per- sonally liable by a written promise founded upon a sufficient con- sideration ; but he cannot create a debt against the deceased. And it is immaterial how clearly the intent to do so may be expressed ; with no power to bind the estate he only binds himself by such contract.'^ And actions upon such contracts may be maintained against an executor or administrator personally, although they may have been signed by him in his representative capacity.^* Forbearance by a creditor is a sufficient consideration, and an executor or administrator promising to pay a debt of the estate at a future day, or with interest, makes the debt his own.'' Where the nature of the debt is such as necessarily to make the defendant liable personally, the judgment should be de bonis propriis, although he is charged with the promise as executor or administrator.^^ The acknowledgment or promise of one joint executor or ad- ministrator shall not render any co-executor or administrator liable, where, except for such acknowledgment the claim would be barred by the statute of limitations.^^ § 391. Liability for torts.— The rule of the common law was that if an injury was done either to the person or property of another for which damages alone could be recovered, the action died with the death of the wrongdoer. In this state all such causes of actions survive, except a cause of action arising out of an injury to the person which cause dies with the death of either " Sidle V. Anderson, 45 Pa. St. 464 ; 57 Ind. 268 ; Wilton v. Eaton, 127 Davis V. French, 20 Me. 21, Z1 Am. Mass. 174; Davis v. Crandall, 101 N. Dec. Z(i; Rusling v. Rusling, 47 N. J. Y. 311, 4 N. E. 721. \..\ ; Baker v. Fuller, 69 Me. 152. " Williams Executors, 1784. "Ellis v. Merriman, 5 B. Mon. "Burns' R. S. 1908, § 304; Kirk v. (Ky.) 296; Carter v. Thomas, 3 Ind. Hiatt, 2 Ind. 322; Bottles v. Miller, 213; Walker v. Patterson, 36 Me. 273. 112 Ind. 584, 14 N. E. 728. "Cornthwaite v. First Nat. Bank, § 391 EXECUTORS AND ADMINISTRATORS' SUITS. 633 party except in cases in which an action is given for an injury causing the death of any person, and actions for seduction, false imprisonment, and maHcious prosecution,^^ and where causes of action survive they may be commenced by or against representa- tives of the deceased.^** Except actions for promises to marry, it would seem that all other causes of action arising out of injury to property, those commonly known as torts, survive and may be brought by or against the representatives of the deceased party."'^ The action must involve injury to the estate and not to the per- son, the rule being that where the injury complained of affects primarily property and property rights, and the injury to the person is merely incidental, the cause of action survives, but where the injury to property is merely an incident, as loss of time and expenses incurred in endeavoring to be cured of the injury, and the primary purpose of the action is a recovery for injuries to the person, as mental anguish, pain and bodily suffering, or injury to character, the same does not survive.^^ It has been held under these statutes that an action against an attorney for damages for a breach of duty to his client may, at his death, be prosecuted against his administrator," the statute providing that no action shall abate by the death or disability of a party, if the cause of action sui"vive or continue. ^^ An administrator as such cannot commit a tort; and if he be- comes liable for a tort he is liable as an individual and not in h'.s official capacity. Replevin is an action in tort, and in replevin against an executor or administrator he may defend by showing that he holds the property as administrator or executor, and that in that capacity he came into possession of it, and that it is the property of the estate. This being a possessory action the plain- tiff" cannot recover unless he shows the right to the property re- " Burns' R. S. 1908, § 283. 156. 17 Am. St. 355, 7 L. R. A. 90; " Burns' R. S. 1908, § 282. Hedekin v. Gillespie, 33 Ind. App. 650, "■' Burns' R. S. 1908, § 284. 72 N. E. 143. ='Feary v. Hamilton, 140 Ind. 45, 39 " Neuman v. Gates, 165 Ind. 171, 72 N. E. 516; Boor v. Lowrey, 103 Ind. N. E. 638. 468, 3 N. E. 151, 53 Am. Rep. 519n; == Burns' R. S. 1908, § 272; Brown v. Hess V. Lowrey, 122 Ind. 225, 23 X. E. Clow, 158 Ind. 403, 62 N. E. 1006. 634 INDIANA PKOBATK LAW. § 392 plevied; hence it is a good defense to the action to plead property in a third person."^ An executor or administrator is personally liable to third per- sons for injuries caused by his cnvn tortious or negligent acts in the administration of the estate."" He is also personally liable for all breaches of ordinary trusts which arise from his office."" But he is not liable for the wrongs and mismanagement of a co-administrator in a matter in which he is not himself culpable."^ The estate is not liable for the torts of the executor or admin- istrator; nor is it liable for any damages growing out of the false representations, warranties, or statements made by the executor or administrator. Such statements, representations, etc., are his individual tort for which he alone can be held individually liable to any person damaged by a reliance thereon."^ § 392. Power to maintain suits. — Every executor or ad- ministrator shall have full power to maintain any suit in any court of competent jurisdiction, in his name as such executor or administrator, for any demand of whatever nature due the dece- dent in his lifetime, for the recovery of possession of any prop- erty of the estate, and for trespass or waste committed on the estate in his lifetime ; but he sliall not be liable, in his individual capacity, for any costs in such suit, and shall have the power at his option to examine the opposite party, under oath, pending such demand ; but evidence thus obtained shall not afterwards be used in any prosecution against such party.^" =* Rose V. Cash, 58 Ind. 278. Moody v. Shaw, 85 Ind. 88 ; Riley v. '* Daily v. Daily, 66 Ala. 266; La- Kepler, 94 Ind. 308; Rodman v. Rod- morere v. Cox, 32 La. Ann. 246; Simp- man, 54 Ind. 444; Mills v. Kuykendall, son V. Snyder, 54 Iowa 557, 6 N. W. 2 Blackf. (Ind.) 47. 730. =^ Burns' R. S. 1908, § 2808. The ^Williams Executors, 1796. right to sue for money or other per- " Davis V. Walford, 2 Ind. 88; sonalty of a decedent belongs to the Braxton v. State, 25 Ind. 82 ; State v. personal representative, not to the heir Wyant, 67 Ind. 25 ; Suydam v. Bas- or widow. Pond v. Sweetser, 85 Ind. tedo, 40 N. J. Eq. 433, 2 Atl. 808. 144. An administrator will not be al- •* Huffman v. Hendry, 9 Ind. App. lowed to sue a distributee to foreclose 324, 36 N. E. 727, 53 Am. St. 351 ; a mortgage when the debts of the de- 392 EXECUTORS AND ADMINISTRATORS SUITS. 635 Under the law in this state executors and administrators are clothed with the same rights and powers, with respect to the per- sonal estate, as the decedent was in his lifetime; and by virtue of these statutes they can maintain actions for trespass, or for in- juries committed both before and after his death; actions of re- plevin or for possession, actions of trover and conversion, actions for money had and received, for the value of goods sold and con- veyed, and actions of ejectment for the recovery of leasehold estates and for any injury that might be done to such leasehold estate. They have ample authority to prosecute any suit with re- spect to the personal estate, which the testator or intestate could have prosecuted in his lifetime. They may also maintain actions for trespass upon real estate committed during the lifetime of the deceased.^** And being expressly authorized by statute to sue it is not nec- essary for an executor or administrator to join with him in such suit the person for whose benefit the action is prosecuted. ^^ Where an action has been commenced and the plaintiff dies be- fore its termination, his personal representative may be substi- cedent have been paid and there is sufficient to pay all legacies, and it is agreed that the mortgagor shall take the mortgage notes as a part of his distributive share. Rauh v. Weis, 133 Ind. 264, 32 N. E. 880. '" Smith V. Dodds, 35 Ind. 452 ; Du- chane v. Goodtitle, 1 Blackf. (Ind.) 117. .'\n administrator, as a trustee of the creditors, may maintain an ac- tion on a note and mortgage surren- dered by his intestate without consid- eration to defraud his creditors; but the complaint must show that the in- testate, at the time of the transfer al- leged to be fraudulent, had no other property, subject to execution, suf- ficient to pay his debts. Johnson v. Jones, 79 Ind. 141. An action lies in favor of an administrator for money received by defendants from the decedent under circumstances showing that in equity and good con- science they ought not to retain it. In such an action by an administrator de bonis non, a complaint alleging that the administratrix, who was the widow, resigned without having ad- mininstered upon any part of the es- tate; that the personal estate, except the note sued on, did not exceed five hundred dollars; that the debts amounted to six thousand five hun- dred dollars, and that the intestate died seized of no other property, real or personal, sufficiently showed that the administratrix had made no dispo- sition of any portion of the assets that could have been applied to the pay- ment of debts. Johnson v. Jones, 79 Ind.* 141. ^ Burns' R. S. 1908, § 252. 636 INDIANA PROBATE LAW. § 392 tilted as the plaintiff in such action, if the action is one which survives to the personal representative.^'- An executor or administrator may maintain an action on an award made to the decedent in his lifetime; and the right is the same whether the matter submitted to arbitration arose out of contract or out of tort.^^ In this state an executor or administrator may maintain an action for the conversion of personal property owned by a dece- dent at the time of his death.''* In all such cases the right of action is in the personal representative and not in the heirs or widow.^° An executor of an executor shall have no authority to com- mence or maintain any action or proceeding relating to the estate or rights of the testator of the first executor, or to take control thereof as such executor.''*' An administrator or executor may compel partition as a tenant in common or joint tenant may do, whenever, in the discharge of his duties as such, it shall be necessary for him to sell the estate of the decedent therein." But the court shall not order or affirm partition contrary to the intention of the testator expressed in his will.^* "' Evans v. Nealis, 69 Ind. 148. itemized account alleging that the de- ^ Dickerson v. Tyner, 4 Blackf. fendant is indebted to the plaintiff in (Ind.) 253. a certain sum of money for the rent, '■' Ferguson v. Barnes, 58 Ind. 169. use and occupation of certain land be- In an action by an administrator, for longing to his decedent, is good on conversion, an answer that the cause demurrer for the want of facts. Ket- of action did not accrue within six cham v. Barbour, 102 Ind. 576, 26 N. years before the commencement of E. 127. the action, was sufficient, though the '* Burns' R. S. 1908, § 2813. complaint averred the appointment of ^ Burns' R. S. 1908, § 1243. the administrator within that time. ^* Matlock v. Nave, 28 Ind. 35. The statute did not commence to run Where lands are devised to an exec- until the appointment was made, and utor in trust for certain purposes, he the answer in effect averred that he is the proper plaintiff in a suit for was not appointed within the time trespass thereto after the death of the named. Douglass v. McCarer, 80 Ind. testator. Taylor v. Fickas, 64 Ind. 91. 167, 31 Am. Rep. 114, limited. Pitts- '' Pond V. Sweetser, 85 Ind. 144. A burg &c. R. Co. v. Swimiey, 97 Ind. complaint by an executor upon an 586. § 392 EXECUTORS AND ADMINISTRATORS' SUITS. 637 An administrator cannot maintain an action to enforce a re- sulting trust in lands in favor of his intestate's estate unless it is shown that such lands, when recovered, will be needed for the payment of the intestate's debts.^^ Before any executor can maintain an action in relation to his testator's estate, he is required to take out letters testamentary and qualify as such executor.'" He cannot maintain an action to enforce a resulting trust in land in favor of the estate unless such land is shown to be neces- sary for the payment of debts." And he may sue for a royalty in oil wells which had accrued to the decedent prior to his death." He may also maintain an action on the bond of a clerk for the misapplication of moneys of the estate paid to him." An action to set aside an assignment of a lease for fraud may be brought by the administrator of the assignor and the venue of such action is the county where the defendant resides regardless of the location of the leased premises." Cases arise where it is necessary for the protection of the prop- erty of a decedent that some one should collect and preserve it for regvilar administration, and until some person has been regu- larly appointed for that purpose. Upon the application of a cred- itor, or of any one interested in the estate the court may appoint a special administrator to collect, care for and preserve the prop- erty of the estate for the duly appointed administrator or execu- tor. Such special administrator has power to sue for and recover property of the estate, and has authority to bring an action for "Burns' R. S. 1908, § 1247; Brown jury. Langsdale v. Woolen, 99 Ind. V. Brown, 43 Ind. 474. 575. "Call V Ewing, 1 Blackf. (Ind.) *^ Williams v. Short, 155 Pa. St. 480, 301 26 Atl. 662. *^ Matlock V. Nave, 28 Ind. 35. In a « Henry v. State, 98 Ind. 381; suit by an administrator to recover Thomas v. Connelly, 104 N. Car. 342, money held in trust, it is immaterial 10 S. E. 520. whether there are demands against the " Mark v. North, 155 Ind. 575, 57 N. estate or not, and interrogatories upon E. 902. the subect should not be sent to the 638 INDIANA PROBATE LAW. § 392 an accounting against the surviving partner of a firm of which his decedent was a member. *° The right of action for damages to the real estate which ac- crued in the lifetime of the decedent is in his administrator and not in the heir.*" In the absence of statutory authority actions for injuries to the person abate on the death of the person and do not survive to his administrator.*^ The heirs at law cannot maintain an action for the conversion of personal property owned by a decedent at the time of his death, and a judgment against the heirs in such an action will not bar an action subsequently brought by the administrator for such conversion.** Executors or administrators may sue for any amount in any court having probate jurisdiction and a judgment for any sum will carr}^ the costs, the provisions of section 6i8, Burns' R. S. 1908, not applying in such cases.*® Justices of the peace have jurisdiction over suits by executors and administrators as fully as they have over those commenced by other persons, and in any such suit, when the defendant has pleaded the general issue and special matters in bar of the action, and a transfer of such cause has been made to the circuit court, he cannot be permitted in that court to deny the character in which the plaintiff sues.^'^ But while executors and administrators may sue before jus- tices of the peace they cannot be sued as such in the courts of such officers."^ A principal on a bond had made fraudulent conveyances of his *^ Bruning v. Golden, 159 Ind. 199, against the heirs in such an action will 64 N. E. 657 ; Flagler v. Blunt, 32 N. not bar an action subsequently brought J. Eq. 518; Ante, §§ 55, 56, 57. by the administrator for such conver- " Schee v. Wiseman, 79 Ind. 389. sion. "'Hilliker v. Citizens' &c. R. Co., "Wheeler v. Calvert, 25 Ind. 365; 152 Ind. 86, 52 N. E. 607. Hillenburg v. Bennett, 88 Ind. 540. *' Douglass V. McCarer, 80 Ind. 91. =» Scanland v. Ruble, 4 Blackf. The heirs at law cannot maintain an (Ind.) 481; Arnold v. Fleming, 14 action for the conversion of personal Ind. 10. property owned by a decedent at the "Palmer v. Fuller, 22 Ind. 115. time of his death, and a judgment § 393 EXECUTORS AND ADMINISTRATORS' SUITS. 639 property, and died insolvent and in default on his bond, which default the surety on such bond was compelled to pay. It was held that even after the death of such surety, a right of action existed in favor of his administrator against the administrator of such principal and the fraudulent grantee to set aside such conveyances and subject the property to the reimbursement of the estate of the surety. ^^ § 393. Right to sue on notes, mortgages, etc. — An execu- tor or administrator may maintain suits for the collection of notes and mortgages payable to the decedent; and an executor may maintain such suits even where the notes and mortgages have been specifically bequeathed by his testator.^^ On a note payable to an executor or administrator as such, he may sue in his representative capacity, for the rule is firmly established that whenever the money recovered will be assets of the estate, the executor or administrator may sue for it and de- clare in his representative capacity;^* and if he renounce his trust, or die before the collection of such note, the administrator de bonis non may maintain such suit ; and on a note so payable he may sue without naming himself as administrator.^^ But if an administrator change the nature of a debt originally due to the intestate, he must sue for the new debt in his own name.^*^ " Coffinberry v. McClellan, 164 Ind. such estate with full knowledge of this 131, 1Z N. E. 97. fact and without consideration, " Crist V. Crist, 1 Ind. 570, 50 Am. showed the plaintiff to not be the real Dec. 481n; North-Western Confer- party in interest, and constituted a ence v. Myers, 36 Ind. 375; Leach good defense. Krutz v. Stewart, 76 V. Prebster, 35 Ind. 415. An adminis- Ind. 9. trator can maintain an action to set ''^ Sheets v. Pabody, 6 Blackf. (Ind.) aside a chattel mortgage and an as- 120, 38 Am. Dec. 132 ; Krutz v. Stew- signment of a certificate of purchase art, 76 Ind. 9; Ratcliff v. Everman, 87 of real estate, fraudulently obtained Ind. 446. from the intestate, when such prop- ^' Helm v. Van Vleet, 1 Blackf. erty is necessary for payment of debts (Ind.) 342, 12 Am. Dec. 248; Capp v- of the estate. Martin v. Bolton, 75 Gilman, 2 Blackf. (Ind.) 45; Barnes Ind. 295. In a suit on a promissory v. Modisett, 3 Blackf. (Ind.) 253. note, an answer that it belonged to a ''" Helm v. Van Vleet, 1 Blackf. decedent's estate, and that the plain- (Ind.) 342, 12 Am. Dec. 248. tiff received it of the administrator of 640 INDIANA PROBATE LAW. § 393 The executor or administrator of a deceased mortgagee may, in the absence or nonresidence of the heirs or devisees of such decedent, maintain ejectment against the mortgagor or any one claiming under him.^' In an action upon a note or written contract against the estate of a deceased maker, the execution of such note or contract must be proved ; and to compel such proof it is not necessary for the executor or administrator of the estate to deny such execution by a sworn plea — such proof must be made without.'''* In an action brought by an executor or administrator upon a promissory note payable to his decedent, it is sulticient to aver in the complaint that such note is due and unpaid, without any special averment that it had not been paid to such decedent in his lifetime.^" Under the old fomis of practice, a declaration in an action by an administrator de bonis non upon a debt due the decedent must state the name of the first administrator; and it would be best to allege a nonpayment to such decedent, or the preceding adminis- trator, as well as to himself."" The assignee of a note against an estate must not only prove the execution of the note, but also the execution and indorse- ments by way of assignment thereon." "Doe V. Mace, 7 Blackf. (Ind.) 2. his death the defendants wrongfully "" Riser v. Snoddy, 7 Ind. 442, 65 converted to their own use, was good, Am. Dec. 740; Mahon v. Sawyer, 18 whether the conversion occurred be- Ind. 73; Cawoods v. Lee, 32 Ind. 44; fore the granting of letters of admin- Wells v. Wells, 71 Ind. 509; Burns' R. istration or thereafter. Gerard v. S. 1908, § 370. Jones, 78 Ind. 378. ""Cromwell v. Barnes, 58 Ind. 20. "^Jennings v. McFadden, 80 Ind. Where, in such an action, the com- 531. Complaint by an administratrix plaint shows that no consideration for money loaned the defendant by was paid to the intestate, an averment the intestate, alleging a promise of of repayment is not necessary. Mar- the defendant after death of the in- tin V. Bolton, 75 Lnd. 295. testate to pay the plaintiff. Answer of "" Vanblaricum v. Yeo, 2 Blackf. denial. Held, that evidence was ad- (Ind.) 322; Griffith v. Fischli, 4 missible on behalf of the defendant to Blackf. (Ind.) 427. A complaint by prove that the money was, in fact, an administrator, showing that his tes- checked out of the bank by the intes- tator died the owner of certain sums tate to the defendant and paid by the of money and property, which after latter at request of the former to a 394 EXECUTORS AND ADMINISTRATORS SUITS. 641 The executor or administrator may maintain an action to can- cel the assignment of a note on the ground that it was obtained from the decedent by fraud.®" § 394. Right to sue on covenants. — An administrator or executor may maintain an action for a breach of covenants in a deed, when such breach occurred in the hfetime of the decedent®^ Where the covenant is broken in the hfetime of the covenantee, and possession is surrendered by him to the holder of the para- mount title, the action should be brought by his administrator and not by the heir. In such a case the land does not descend to or vest in the heir, and therefore no right of action for a breach of the covenant is ever acquired by him.®* In Rawle on Cove- nants of Title, page 336, it is said : "With respect to covenants, although until breach they, equally with the warranty, passed to the heirs with the land they were intended to protect, yet if a breach had occurred in the lifetime of the testator, they then be- came choses in action, incapable of transmission or descent, and whose right survived to the executor alone." From these author- ities it of necessity follows that, where the special damage is to creditor of the intestate. Slade v. Leonard, 75 Ind. 171. •'Walker v. Steele, 121 Ind. 436, 22 N. E. 142, 23 N. E. 271; Derrick v. Emmens, 38 N. Y. St. 481, 14 N. Y. S. 360. Action by an administra- tor on a note made to his intestate by the defendant. Answer, that it was executed by defendant to his father, the intestate, for the purchase of his real estate, with an agreement that only the interest and such portion of the principal as should become neces- sary should be paid to defendant's father and mother during their lives, and that after the death of both, de- fendant should pay the note to his sis- ters or their children, and that his mother was still living and entitled to receive the interest. Held, that the note, absolute and unconditional on its face, could not be varied or contra- dicted by proof of such contempora- neous verbal agreement. Held, that the note did not constitute an exe- cuted gift to the intestate's daughters, but, having remained in the hands of the intestate till his death, it went to his administrator. Held, that the aver- ment that the widow had a right to the possession, was not an averment of fact which a demurrer admitted, but was simply an incorrect statement of a legal conclusion. Foglesong v. Wickard, 75 Ind. 258. ® Burnham v. Lasselle, 35 Ind. 425. "* Wilson V. Peelle, 78 Ind. 384; Frink v. Bellis, 32 Ind. 135, 5 Am. Rep. 193. 41 — Pro. L.\w. 642 INDIANA PROBATE LAW. § 395 the testator or intestate in his lifetime, the executor or adminis- trator must sue.^^ This is in effect the rule of the common law by which the right to sue on a covenant real descends to the heirs of the covenantee, or goes to his assigns, to the exclusion of his executor or admin- istrator, yet if such covenant had been broken during the life- time of the covenantee his executor or administrator might sue upon it ; but though there may have been a formal breach during the covenantee's life, yet, if no substantial damage followed until after his death, the heir and not the administrator has the right to sue.'® This is the rule as to covenants which run with the land, but as to personal covenants not running with the land, such as the covenant of seisin, for right to convey, and against incumbrances, there is this distinction, that if these latter covenants are not true there is a breach as soon as made, which constitutes a chose in action descending to the executor or administrator.®^ § 395. Evidence of power to sue — Pleadings — Copy of let- ters, etc. — In any suit contemplated in the foregoing sections it shall not be necessary for such executor or administrator to make profert of his letters, nor shall his right to sue as such executor or administrator be questioned, unless the opposite party shall file a plea denying such right, with his affidavit to the truth thereof thereunto attached, in which case a copy of the letters issued to such executor or administrator, duly authenticated, shall be all the evidence necessary to establish such right.®* Where the debt is payable to an executor or administrator as ** Frink v. Bellis, 33 Ind. 135, 5 Am. v. Vanmeter, 7 Ind. App. 45, 33 X. E. Rep. 193 ; Martin v. Baker, 5 Blackf . 666. A plaintiff's legal capacity- to sue (Ind.) 232. as administrator can be questioned "Com. Dig. Title Covenant B. 1; only bj' a sworn answer. His com- Williams' Extrs., 803; Woerner Am. plaint need not make profert of his Law Admin., § 291; Rawle on Cove- letters. Hansford v. VanAuken, 79 nants, § 316 (5th ed.). Ind. 157; Hansford v. VanAuken, 79 "4 Kent. Com. 472; Rawle Cove- Ind. 302; Bennett v. Gaddis, 79 Ind. nants, § 316. 347; Stephenson v. Martin, 84 Ind. «* Burns' R. S. 1908, § 2810. Barnett 160; Higgins v. State, 87 Ind. 282. § 395 EXECUTORS AXD ADMINISTRATORS' SUITS. 643 such, he may sue for its recovery in his own name and right, and no profert of his letters is necessary; nor is profert of his letters necessary in an action on a judgment obtained by him in his rep- resentative character. It is not necessary in either instance that he name himself as executor or administrator. The reason for this is that the judgment is considered as a debt due to him in his personal capacity, and he may declare that it is due to himself.*'^ The law is well settled that if an executor or administrator sue on a cause of action arising in the lifetime of the testator or in- testate, and the defendants plead the general issue or any other plea in bar of the action, the representative character of the plaintiff is admitted by such plea.'^'* The old plea of ne unques administrator, where the cause of action accrued in the lifetime of the intestate, was held to be a plea in abatement, calling in question the representative character of the plaintiff.'^ Letters testamentary and of administration and of adminis- tration with the will annexed, or de bonis non, attested by the clerk, and under the seal of the court issuing them, shall be con- sidered evidence of the authority of the person to whom they are granted, until superseded or revoked, and shall extend to all the estate, personal and real, of the decedent within the state. The record of such letters, and duly certified transcripts thereof, may be given in evidence with like effect as the originals. '- Where an action is brought by an executor or administrator as such, his right to sue in that character can only be questioned by a plea in abatement supported by affidavit. Such question cannot be raised by demurrer to the complaint.'^ A certified copy of '"Savage v. Meriam, 1 Blackf. "^ Codding v. Whittaker, 5 Blackf. (Ind.) 176; Capp v. Gilman, 2 Blackf. (Ind.) 470; Weathers v. Xewman, 1 (Ind.) 45; Helm v. Van Vleet, 1 Blackf. (Ind.) 232. Blackf. (Ind.) 342, 12 Am. Dec. 248; " Burns' R. S. 1908. § 2758. Campbell v. Baldwin, 6 Blackf. (Ind.) " Nolte v. Libbert, 34 Ind. 163; Hig- 364. gins V. State, 87 Ind. 282; Kelley v. '"Pollard V. Buttery, 3 Blackf. Love, 35 Ind. 106; Langsdale v. Gir- (Ind.) 239; Weathers v. Newman, 1 ton, 51 Ind. 99; Hansford v. Van Au- Blackf. (Ind.) 232. ken, 79 Ind. 157. 644 INDIANA PROBATE LAW. § 395 letters testamentary or of administration may be introduced in evidence as original.^* If, from the complaint, there is uncertainty as to the character in which an executor or administrator sues, the remedy is by motion to make the complaint more specific and not by de- murrer."'^ A complaint by an executor or administrator need not show his appointment as such executor or administrator, nor need it allege the death of the decedent. In such an action the law will pre- sume that a man is dead from the fact that letters testamentary or of administration have been granted upon his estate by the proper tribunal. If it appear from the complaint that such executor or administrator sues in his representative capacity, such complaint will be sufficient, and profert of his letters need not be made. The capacity in which he sues can only be questioned by plea supported by affidavit.'*' Perhaps, in a direct proceeding, where the death of a person is an essential fact necessary to be proved, a presumption of such death will not arise. ^' Where an executor or administrator sues the court will pre- sume that he has been duly and legally appointed, and his right to sue cannot be questioned, except by special answer under oath,^^ and the same rule applies in a suit by an administrator de bonis non.'^ In an action by an administrator on a note payable to his decedent the complaint, which in the title and in the body thereof, designated the plaintiff as administrator of the decedent, was held sufficient, though it contained no allegation of the death " Bales V. Binford, 6 Blackf. (Ind.) ™ Kelley v. Love, 35 Ind. 106;Wyant 415. V. Wyant, 38 Ind. 48 ; Xolte v. Libbert, " Ohio &c. R. Co. V. McClure, 47 34 Ind. 163 ; Jenkins v. Peckinpaugh, Ind. 317; English v. Roche, 6 Ind. 62. 40 Ind. 133; Jeflfersonville R. Co. v. The circuit court may order the dis- Swayne, 26 Ind. 477; Bennett v. Gad- missal of a suit brought in the su- dis, 79 Ind. 347. perior court by an administrator for " Buntin v. Doe, 1 Blackf. (Ind.) his own benefit, and such an order 26. will not be an interference with the " McDowell v. North, 24 Ind. App. jurisdiction of the superior court. 435, 55 N. E. 789. Rauh V. Weis, 133 Ind. 264, 32 N. E. '* Michigan Trust Co. v. Probasco, 880. 29 Ind. App. 109, 63 N. E. 255. § 395 EXECUTORS AND ADMINISTRATORS' SUITS. 645 of the decedent or the issuance of letters upon his estate.^" A demurrer will properly raise the question as to the character or capacity in which an administrator sues when such capacity does not appear from the face of the complaint, but if the representa- tive character of the plaintiff is apparent upon a liberal construc- tion of the complaint his right to sue can only be questioned by a plea under oath/^ Before the adoption of what is now section 2810, Burns' R. S. 1908, whenever it was necessary for a plaintiff to sue as executor or administrator, an omission to show his authority to so sue was fatal on special demurrer ; but when he could sustain such action in his own right, the omission was considered immaterial, al- though he might have described himself as executor or admin- istrator.^^ A complaint by an executor or administrator against one for a wrongful conversion of a decedent's personal property, which alleges such wrongful conversion, is good whether the conver- sion occurred before or after the granting of letters testamentary or of administration upon the estate of such decedent.^^ An administrator sued as such, whose letters are revoked pend- ing the suit, may plead such revocation in bar of the action; for if a person so sued be not such administrator, it is a good bar to the action.** An administrator sued as such on a claim against his dece- dent's estate cannot set up an estoppel to protect his title to real estate purchased by him individually from the heirs of such de- cedent.*^ A plea in abatement for the reason that the executor or admin- istrator has filed no bond is good.*^ Where it is uncertain from the complaint in what capacity an *" Toner v. Wagner, 158 Ind. 447, 63 ^ Gerard v. Jones, 78 Ind. 378. N. E. 859. ^ Morrison v. Cones, 7 Blackf. ** Toner v. Wagner, 158 Ind. 447, 63 (Ind.) 593; 2 Phillips' Evidence, 363. N. E. 859. ^ Lee v. Carter, 52 Ind. 342. ''Campbell v. Baldwin, 6 Blackf. ^ Call v. Ewing, 1 Blackf. (Ind.) (Ind.) 364. 301. 646 INDIANA PROBATE LAW. § 396 executor or administrator sues, the remedy is b}' motion to make more specific and not by demurrer."*^ The action must be brought in the name of the executor or ad- ministrator of the decedent as his personal representative and not in the name of his estate. 'The estate of a dead man cannot be a party to a suit without some representative ; and the suit should be carried on in the name of the representative as such."^** § 396. Survival of actions. — If, at the time any executor or administrator shall die, resign or be removed, any suit or pro- ceeding be pending in any court in which his name, in his fidu- ciary capacity, is used, such suit or proceeding shall not abate or be discontinued, but the same shall be prosecuted or defended by the remaining executor or administrator, if there be one, or by his successor, the name of such survivor or successor being sub- stituted in such suit or proceeding instead of that of the executor or administrator whose authority has ceased ; nor shall such suit or proceeding be continued to another term on account of such death, unless at the option of such survivor or successor.*" A defendant dying during the pendency of an action, such ac- tion does not abate, but may be continued against the personal representatives of such deceased defendant, and the cause may be prosecuted to final judgment against the executor or adminis- trator of such defendant, provided such cause be one which sur- vives.*"^ Where an executor or administrator who has begun an action dies or resigns, and his successor is appointed pending the action, it is immaterial whether the name of the successor appears as a party to the record, although he has appeared and prosecuted such ""Ohio &c. Co. V. McClure, 47 Ind. App. 119, 70 X. E. 1008; Dallam v. 317. Estate of Stockwell, 33 Ind. App. 620, ^ Wells V. Wells, 71 Ind. 509; Mc- 71 N. E. 911. Conahey's Estate v. Foster, 21 Ind. *' Burns' R. S. 1908, § 2811. App. 416, 52 N. E. 619; Dunn v. Es- ""Burns' R. S. 1908, § 272. Lawson tate of Evans, 28 Ind. App. 447, 63 N. v. Newcomb, 12 Ind. 439; Holland v. E. 36; Whisler v. Whisler, 162 Ind. Holland, 131 Ind. 196, 30 N. E. 1075; 136, 67 N. E. 984, 70 N. E. 152; Estate Clodfelter v. Hulett, 92 Ind. 426. of Guernsey v. Pennington, 33 Ind. § 39*5 EXECUTORS AND ADMINISTRATORS' SUITS. 647 action to a conclusion.^' If a defendant die after an action is brought the suit does not abate, but his personal representative may, by an amendment of the pleading, or the filing of a supple- mental complaint be substituted in his stead and process is issued accordingly. A suit cannot be continued in the name of one who is dead.^" In all cases where actions survive, they may be commenced by or against the representatives of the deceased to whom the in- terest in the subject-matter of the action has passed.^^ A cause of action arising out of an injury to the person dies with the person of either party, except in such cases in which an action is given for an injury causing the death of any person, and actions for seduction, false imprisonment and malicious prosecu- tion."' All other causes of action survive, and may be brought by or against the representatives of the deceased party, except actions for promises to marry. "^ If the action is for injury to property to which the personal injury is merely an incident the action will survive; but where the cause of action is for an injury to the person, and the injury to property is merely incidental it does not survive.®*' Where, in a cause of action which survives, the heirs are sub- stituted as defendants upon the death of their ancestor, they stand in precisely the same relation to the plaintiff that the orig- inal defendants did." An action which does not survive dies with the plaintiff; and the administrator in such case cannot be substituted.^* In case of the death of a defendant in an action which will "Elmore v. McCrary, 80 Ind. 544. *= City of Seymour v. Cummins, 119 "= Holland v. Holland, 131 Ind. 196, Ind. 148, 21 X. E. 549, 5 L. R. A. 126n; 30 X. E. 1075; Taylor v. Elliott, 52 Jenkins v. French, 58 X. H. 532; Wolf Ind. 588. V. Wall, 40 Ohio St. 111. "Burns' R. S. 1908, § 282. Sebrell '^ Champ v. Kendrick, 130 Ind. 549, V. Couch, 55 Ind. 122. 30 X\ E. 787. ■" Burns' R. S. 1908. § 283. Gimbel '' Stout v. Indianapolis &c. R. Co. 41 V. Smidth. 7 Ind. 627; Stout v. Indi- Ind. 149: Indianapolis &c. R. Co. v. anapolis &c. R. Co., 41 Ind. 149. Stout, 53 Ind. 143. " Burns' R. S. 1908, § 284. 648 INDIANA PROBATE LAW. § 396 survive, the personal representative of such defendant must be substituted as a party to the action. Such substitution is, how- ever, to a certain extent, a new cause of action, and requires an amendment of the original complaint, or better yet, the filing of a supplemental complaint against the new party. Process must, in such case, be served against such personal representative, un- less he voluntarily appears, but his appearance does not avoid the necessity of new pleadings."" And one administrator or executor may be substituted for an- other.^ The right of action upon a joint contract passes, on the death of an obligee, to the survivor, and the heirs and personal repre- sentatives of the deceased obligee are not necessary parties.^ The estate of a decedent is liable for a false and fraudulent return of a tax-list made by him, and an action can be maintained against his personal representative.^ The rule is that statutory actions for torts abate according to the rules of common law, the same as common law actions, unless they are, by statute, expressly saved.* An action brought by a father for the death of his child is saved by statute from abatement, and wnll, upon the death of the father, survive to his executor or administrator.^ *° Holland v. Holland, 131 Ind. 196, name of the administrator de bonis 30 N. E. 1075; Watson v. State, 21 non was substituted as plaintiff, objec- Ind. 109; Wood v. Ostram, 29 Ind. tions to the manner of his appoint- 177; Evans v. Nealis, 69 Ind. 148; ment would not be noticed in the ap- Shirk V. Coyle, 2 Ind. App. 354, 27 N. pcllate court where they were not E. 638 ; Clodfelter v. Hulett, 92 Ind. properly brought to the attention of 426. It is said, "evidently the same the lower court. latitude is allowed courts in permit- * Indiana &c. R. Co. v. Adamson, ting amendments in causes revived 114 Ind. 282, 15 N. E. 5; Pomeroy against personal representatives, as is Rem., § 226; Dicey Parties to Actions, allowed in ordinary actions, having 149. due regard for the rights of the re- ^ Davis v. State, 119 Ind. 555, 22 N. spective parties and the speedy and E. 9. effective administration of justice." * Little v. Conant, 2 Pick. (Mass.) 'Mahon v. Mahon, 19 Ind. 324. In 527; Hooper v. Gorham, 45 Me. 209; this case it was held that where an ac- Pennsylvania Co. v. Davis, 4 Ind. App. tion was begun in the name of an ad- 51, 29 N. E. 425. ministrator, and before the determi- ° Pennsylvania Co. v. Davis, 4 Ind. nation of the suit he dies, and the App. 51, 29 N. E. 425. § 396 EXECUTORS AND ADMINISTRATORS' SUITS. 649 In actions for bastardy, brought by the mother of a bastard child against the reputed father of such child, the right of action survives the death of such father. The statute reads : "In case of the death of the putative father of such child, either before or after the commencement of prosecution, and after the prelim- inary examination before the justice, the right of action shall survive, and may be prosecuted against the personal representa- tives of the deceased with like effect as if such father were living, except that no arrest of such personal representative shall take place or bond be required.'' In such an action the mother of the child is a competent witness."^ In construing the statute, the court says : "The provision for the survivor of the right of action is not as lucidly expressed as it might be. But we think the intention of the legislature was that the right of action should survive generally. It may be read to that effect in various ways. 'And' sometimes means 'or,' and vice versa. Or supplying the ellipsis, it might read, 'and either before or after the preliminary examination,' etc. Thus is every clause made effective, and the whole section stands, with no great violence to the language."® As to actions for personal injuries which ordinarily do not survive, we have a statute which provides, that whoever has a claim for personal injuries and obtains judgment for the same against any person, company or corporation in any trial court of this state, and from which judgment any person, company or cor- poration, against whom or which the same was obtained, shall appeal to the Supreme or Appellate Court of this state, and such judgment be reversed by such Supreme or Appellate Court, and a new trial be granted to appellant thereon; and if the person who obtained such judgment should die, pending such appeal, or before a new trial after such reversal can be had, such claim for personal injuries shall survive and may be prosecuted by the per- sonal representatives of such decedent, as other claims are prose- cuted for and on behalf of decedents' estates.^ » Burns' R. S. 1908, § 1034; State v. ' State v. Williams, 8 Ind. 191. Williams, 8 Ind. 191. ' Burns' R. S. 1908, § 286. ' State V. Han, 23 Ind. 539. 650 INDIANA PROBATE LAW. § 397 The words "pending such appeal'' in this statute refer to the time of the announcement by the defeated party of his intention to appeal. "Otherwise," as the court says, "if the plaintiff dies after the judgment and before the transcript is filed his cause of action dies with him, notwithstanding this section of the statute which obviously intended to provide against such contingency."'" § 397. Limitation of actions. — If any person entitled to bring or liable to any action shall die before the expiration of the time limited for the action, the cause of action shall survive to or against his representatives, and may be brought at any time after the expiration of the time limited, within eighteen months after the death of such person." Actions for the recoverv- of real property sold by executors, administrators, guardians or commissioners of a court upon a judgment specially directing the sale of property sought to be recovered, brought by a party to the judgment, his heirs or any person claiming a title under a party acquired after the date of the judgment, shall be brought within five years after the sale is confirmed. '- Neither a joint debtor, nor his representatives, in whose favor the statute of limitations has operated, shall be liable to a joint debtor or surety, or their representatives, upon payment by such joint debtor or surety, or their representatives, of the debt, or any part of it." The acknowledgment or promise of one joint execu- tor or administrator shall not make any other executor or admin- istrator liable." Suits to recover land sold at an executor's or administrator's sale must be brought within five years, and the statute of limita- tions begins to run from the time of the sale, even though the sale be absolutely void. The statute is for the protection of bad titles, not good ones.'^ '" Western Union Tel. Co. v. Adams, " Burns' R. S. 1908, § 308. 28 Ind. App. 420, 6Z N. E. 125. " Burns' R. S. 1908, § 304. " Burns' R. S. 1908, § 300. ^= Irey v. Marker, 132 Ind. 546, 32 "Burns' R. S. 1908, § 295, 4th X. E. 309; Davidson v. Bates, 111 Ind. Clause. 391, 12 N. E. 687; Fisher v. Bush, 133 Ind. 315, 32 X. E. 924; Second Xat. 398 EXECUTORS AND ADMINISTRATORS' SUITS. 65 1 Persons under legal disabilities are not excepted from the run- ning of the statute of limitations; but if a person is under such disability when the cause of action accrues, he will have two years after the removal of the disability in which to sue/^ One disability cannot be tacked on to another so as to extend the time within which suit may be brought/' And the burden of estab- lishing a disability is upon the person asserting it. The presumption is against disability and where relied on it must be pleaded. ^^ While it is the rule that one disability cannot be tacked on to another, that is not the effect of the first section above. This statute extends the period of limitation for a time equal to the difference between eighteen months and the residue of the limita- tion unexpired at the death of the party. '^ In this way the death of a party may extend the time for bringing suit but it cannot shorten it.-*^ And this section of the statute applies both to suits by and suits against administrators and executors.-^ An executor or administrator need not plead the statute of lim- itations in order to obtain the benefit of it." § 398. Joinder of causes — Right of third person to sue. — An executor may join a paragraph for trespass quare clausum f regit, occurring during the testator's lifetime, with another for a like trespass occurring after the testator's death, where such lands have been devised to the executor in trust for certain speci- fied purposes.-" But as the lands immediately on the death of the Bank v. Corey, 94 Ind. 457; Vancleave Walker v. Hill, 111 Ind. 223, 12 N. E. V. Milliken, 13 Ind. 105. 387. "Burns' R. S. 1908, § 298; Lehman ^Palmer v. Wright, 58 Ind. 486; V. Scott, 113 Ind. Id, 14 N. E. 914; Briscoe v. Johnson, 73 Ind. 573. Bauman v. Grubbs, 26 Ind. 419 ; Bar- " Harris v. Rice, 66 Ind. 267. nett V. Harshbarger, 105 Ind. 410, 5 -" Emerick v. Chesrown, 90 Ind. 47 ; N. E. 718; Davidson v. Bates, 111 Ind. AlcXear v. Roberson, 12 Ind. App. 87, 391, 12 N. E. 687; Royse v. Turn- 39 N. E. 896. baugh, 117 Ind. 539, 20 X. E. 485. ==^Roeder v. Keller, 135 Ind. 692, 35 '■ White V. Clawson, 79 Ind. 188 ; N. E. 1014. Knippinberg v. Morris, 80 Ind. 540 ; " Zeller v. Griffith, 89 Ind. 80. Sims V. Gay, 109 Ind. 501, 9 N. E. 120 ; ^ Pittsburgh &c. R. Co. v. Swinney, 97 Ind. 586. 652 INDIANA PROBATE LAW. § 398 decedent pass to the heirs or devisees, this doctrine can have no general appHcation. If both will be assets in his hands, he may join a paragraph for a conversion of his decedent's property, before the death of the decedent, with one for damages accruing to such property after his death. -^ And an executor or administrator may join a para- graph which counts on a promise made to his decedent, with one counting on a promise made to himself, in his representative ca- pacity. ^^ But he will not be permitted to join a cause of action vested in him in his representative capacity, with a cause which has accrued to himself personally.-*' A cause of action which has accrued to an executor or admin- istrator on a judgment recovered by him in his representative character, may be joined with an action on a note due the de- cedent." That in all cases where any person interested in an estate files a petition to the court alleging that the administrator or executor or any other person named in said petition, claims in his own right any personal property, note or chose in action, or said ad- ministrator or executor acquiesces in the claim of any person thereto, which personal property, note or chose in action is al- leged to be the property of the estate and that it was the property of the decedent in his lifetime, such petitioner shall be allowed to make proof of his allegations and summons shall issue, and issues shall be joined and trial had as in ordinary civil cases, but such petition shall be- accompanied by a bond for costs with sufficient surety, to be approved by the clerk, if filed in vacation, or by the court, if filed during term time, conditioned for the payment of all costs which may be adjudged against the petitioner.-* ^ French v. Merrill, 6 N. H; 465 ; =« Bogle v. Kreitzer, 46 Pa. St. 465 ; Epes V. Dudley, 5 Rand. (Va.) 437. Bulkley v. Andrews, 39 Conn. 523. ''Lowev. Bowman, 5 Blackf. (Ind.) ^Crawford v. Witten, 1 Lofift 154; 410; Sheets v. Pabody, 6 Blackf. Robbins v. Gillett, 2 Chand. (Wis.) (Ind.) 120, 38 Am. Dec. 132; Cowell 96. V. Watts, 6 East 405 ; Patterson v. Pat- -^ Burns' R. S. 1908, § 2809. terson, 59 N. Y. 574, 17 Am. Rep. 384; Brown v. Lewis, 9 R. I. 497. 399 EXECUTORS AND ADMINISTRATORS' SUITS. 653 § 399. Actions for injuries resulting in death. — Where one was injured by the wrongful act of another so that death resulted from such injury there was no remedy by the common law, but such actions are now generally authorized by statute. The stat- ute in this state provides that when the death of one is caused by the wrongful act or omission of another, the personal representa- tives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he or she (as the case may be) lived, against the latter for an injury for the same act or omission. The action shall be commenced within two years. The damages cannot exceed ten thousand dollars ; and must inure to the exclusive benefit of the widow, or widower (as the case may be), and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.^® It is a familiar and long established maxim of the common law that a cause of action for an injury to the person dies with the party injured, and does not survive to his personal representa- tives. The effect of this statute is to create an entirely new cause of action unknown to the common law ; an action given for the exclusive benefit of the widow and children of the deceased, or his next of kin. It is not a revival of the cause of action for the injury of a deceased person in favor of his personal representa- tives. The remedy provided is a new and purely statutory one.^" » Burns' R. S. 1908, § 285. Co. v. Branyan, 10 Ind. App. 570, 11 ^ The action for damages for death, N. E. 190. A complaint by an admin- under this section, is wholly statutory, istrator against a railroad company to and cannot be joined with one for an- recover damages for the death of his other cause. Cincinnati &c. R. Co. v. intestate, must, to show a cause of ac- Chester, 57 Ind. 297; Pittsburg &c. R. tion, allege that the latter left surviv- Co. V. Vining, 27 Ind. 513, 92 Am. ing him either a widow or children, Dec. 269; Jeffersonville &c. R. Co. v. or next of kin. In the absence from Swayne, 26 Ind. 477 ; Sherlock v. Al- the complaint of such allegation the ling, 44 Ind. 184. In order that an ad- judgment will be arrested on motion, ministrator may recover for dece- Stewart v. Terre Haute &c. R. Co., dent's death, the heirs need not have 103 Ind. 44, 2 N. E. 208; Burns v. a legal claim on decedent, but the pe- Grand Rapids &c., R. Co., 113 Ind. cuniary value of what they would 169, 15 N. E. 230; Hecht v. Ohio &c. probably have derived had he lived R. Co., 132 Ind. 507, 32 N. E. 302; may be recovered. Chicago &c. R. State v. Walford, 11 Ind. App. 392, 39 654 INDIANA PROBATE LAW. § 4OO The right of action given by this statute is for causing the death of a person by a wrongful act or omission of another, in cases where the deceased, had he Hved, might have maintained an action for an injury to himself arising from the same cause. In one case our Supreme Court says : "The right of compensation for the bodily injury of the deceased, which died with him, re- mains extinct. The right of action created by the statute is founded on a new grievance, namely : causing the death, and is for the injury sustained thereby, by the widow and children or next of kin, of the deceased, for the damages must inure to their exclusive benefit. They are recovered in the name of the personal representatives of the deceased, but do not become assets of the estate. The relation of the administrator to the fund, when re- covered, is not that of the representative of the deceased, but of a trustee for the benefit of the widow and next of kin. The ac- tion is for their exclusive benefit, and if no such person existed it could not be maintained."" The right to bring such action extends throughout the jurisdic- tion of the state and upon all the navigable waters upon the boundaries of the state over which it has jurisdiction, either solely or concurrently with other states. ^^ § 400. Same — Administrator's right. — This statute gives to the administrator the sole right to prosecute the action pro- vided for, and by implication the right to control such action. The heirs of the decedent are not parties to the action and can N. E. 162. Compensatory damages in plaint should show that the action is such cases include compensation for not barred. Hanna v. Jeffersonville pain and suffering, as well as for pe- R. Co., Z2 Ind. 113. cuniary expenditures of the injured "Indianapolis &c. R. Co. v. Keely, party. Ohio &c. R. Co. v. Dickerson, 23 Ind. 133; Jeffersonville &c. R. Co. 59 Ind. 317. The names and relation- v. Hendricks, 41 Ind. 48; Stewart v. ship to the deceased, of the persons Terre Haute &c. R. Co., 103 Ind. 44, entitled to receive the damages, should 2 N. E. 208 ; Lucas v. New York &c. be stated in the complaint. Indian- R. Co., 21 Barb. (N. Y.) 245; Chicago apolis &c. R. Co. v. Keely, 23 Ind. &c. R. Co. v. Morris, 26 111. 400; 133 : Stewart v. Terre Haute &c. Lyons v. Cleveland &c. R. Co., 7 Ohio R. Co., 103 Ind. 44, 2 N. E. 208. The St. 336, 70 Am. Dec. 75. action must be commenced within two ^ Sherlock v. Ailing, 44 Ind. 184. years after the death and the com- § 400 EXECUTORS AND ADMINISTRATORS' SUITS. 655 exercise no control over it, and a settlement with them, by way of compromise, cannot be pleaded as a defense to the action by the administrator.^^ The right given by this statute is a continuation in the personal representative of the cause of action which would have existed for the negligence and wrongful act in favor of the deceased if he had survived.^* The administrator would have the same right to control the action that the deceased would have had had he sur\uved and prosecuted it.^^ The heirs have no right to compro- mise such action; the administrator has sole control over such action, and the right to prosecute it to final judgment, and to ac- cept and collect the amount of damages assessed. The defendant cannot plead a compromise with the heirs as a defense to an ac- tion by the administrator.^® The personal representative is given a right of action by this statute only in cases where the deceased himself might have maintained an action had he lived; therefore, where an injured party has brought suit against the wrong-doer and recovered damages in his lifetime, such judgment being paid and received by him, no right of action remains to his personal representative, although such injured person afterwards dies from the injuries received. An action, for a cause of action liquidated and satis- fied, cannot survive in favor of any person.'*' When the death of one is caused by the wrongful act or omis- sion of another, the personal representatives of the former may maintain an action therefor against the latter, but the death of the latter abates the action. The statute being in derogation of the common law, must be strictly construed. The plain implica- tion from the language of the statute is at war with the idea that " Yelton V. Evansville &c. R. Co., ton v. Evansville &:c. R. Co., 134 Ind. 134 Ind. 414, 33 N. E. 629, 21 L. R. A. 414, 23 N. E. 629, 21 L. R. A. 158n. 158n ; Dowell V. Burlington &c. R. Co., " Markel v. Spitler, 28 Ind. 488; 62 Iowa 629, 17 N. W. 901. Yelton v. Evansville &c. R. Co., 134 ^ Long V. Morrison, 14 Ind. 595, 77 Ind. 414, 33 X. E. 629, 21 L. R. A. Am. Dec. 72; Yelton v. Evansville &c. ISSn; Woerner, Law Admr., 683. R. Co., 134 Ind. 414, 33 X. E. 629, 21 "" Hecht v. Ohio &c. R. Co., 132 L. R. A. 158n. Ind. 507, 32 X. E. 302; Littlewood v. *= Rogers v. Zook, 86 Ind. 237 ; Yel- Mayor, 89 X. Y. 24, 42 Am. Rep. 656 INDIANA PROBATE LAW. § 4OO the legislature intended to create a cause of action en forcible against, as well as by, personal representatives.^^ The action must be brought and must be maintained to the end by an administrator. He pursues the remedy, not for the benefit of the estate, but as a trustee specially designated by the statute to recover and distribute the damages.^^ The widow, children and next of kin are not parties to the action and have no right to be parties, and have no power to compromise or control the ac- tion.*" This statute creates a new and independent right of action in the administrator and does not confer upon such admin- istrator the same right or cause of action that would have vested in the deceased in his lifetime." If a general administrator has been appointed for the estate, the right of action under this statute is in him and no special administrator can be appointed merely for the purpose of bring- ing suit.*" The administrator has power to compromise a claim arising under this statute either before or after suit has been begun, and 271 ; Hegerich v. Keddie, 99 N. Y. 258, nothing in the language of the statute 52 Am. Rep. 25; Helton v. Daly, 106 that suggests the appointment of a 111. 131 ; Fowlkes v. Nashville &c. R. special representative for the single Co., 9 Heisk. (Tenn.) 829. purpose of prosecuting the suit. There ^^ Hamilton v. Jones, 125 Ind. 176, is nothing in the act forbidding one 25 N. E. 192; Hegerich v. Keddie, 99 person from acting in both capacities. N. Y. 258, 52 Am. Rep. 25; Ott v. There is no duty imposed by the act Kaufman, 68 Md. 56, 11 Atl. 580; that may become inconsistent with the Russell V. Sunbury, 2)1 Ohio St. 372, duties of a general administrator. 41 Am. Rep. 523 ; Moe v. Smiley, 125 And, in fine, an administrator, clothed Pa. St. 136, 17 Atl. 228, 3 L. R. A. 341. virith no other powers or duties but to ^* Dillier v. Cleveland &c. R. Co., 34 prosecute a suit for the benefit of the Ind. App. 52, 72 N. E. 271 ; Fabel v. widow and children would be in no Cleveland &c. R. Co., 30 Ind. App. sense the personal representative of 268, 65 N. E. 929. the deceased. So we conclude that the **■ Cleveland &c. R. Co. v. Osgood, general administrator of the estate of 36 Ind. App. 34, IZ N. E. 285 ; Pitts- a decedent is the personal representa- burgh &c. R. Co. v. Moore, 152 Ind. tive of such deceased person within 345, 53 N. E. 290, 44 L. R. A. 638. the meaning of Sec. 285, supra, and ^ Pittsburgh &c. R. Co. v. Hosea, the only proper plaintiff in the action 152 Ind. 412, 53 N. E. 419. given by said section." Lake Erie &c. " Lake Erie &c. R. Co. v. Charman, Co. v. Charman, 161 Ind. 95, 67 N. E. 161 Ind. 95, 67 N. E. 923. "There is 923. § 400 EXECUTORS AND ADMINISTRATORS SUITS. 657 it is not necessary to his exercise of snch power that he have an order of court to compromise/" Such an action may be maintained by a foreign administrator, and the amount recovered by him will be held in trust for the proper beneficiaries.** But such action cannot be maintained by an administrator, whose appointment rests upon the claim for damages as the only assets of the decedent in this state, the intestate being at the time of his death a nonresident of this state. Letters of administra- tion so issued are void.*^ The intention of the statute is to provide a remedy not only for the citizens of this state, but for the citizens of other states while passing through or residing in this state.**' It must appear from the complaint in such action that the death was caused by the wrongful act or omission of the alleged wrong- doer.*' '' Pittsburgh &c. R. Co. v. Gipe, 160 Ind. 360, 65 X. E. 1034. " Jeffersonville &c. R. Co. v. Hen- dricks, 41 Ind. 48; Jeflfersonville &c. R. Co. V. Hendricks, 26 Ind. 228. ^'Jeffersonville &c. R. Co. v. Swayne, 26 Ind. 477; Toledo &c. R. Co. V. Reeves, 8 Ind. App. 667, 35 X. E. 199. ** Memphis &c. Packet Co. v. Pickey, 142 Ind. 304, 40 N. E. 527. " Sherfey v. Evansville &c. R. Co., 121 Ind. 427, 23 N. E. 273; Penns.vl- vania Co. v. Long, 94 Ind. 250; Low- rey v. Delphi, 55 Ind. 250 ; Indiana Mfg. Co. V. Millican, 87 Ind. 87. A complaint which avers that a locomo- tive engine was run over, upon and against the deceased wantonly, reck- lessly and willfully, with the knowl- edge of the decedent's unconscious- ness of impending danger, states a good cause of action, whether the de- cedent was a trespasser or not. Pitts- burgh &c. R. Co. V. Judd, 10 Ind. App. 213, 36 N. E. 775. In an action for the death of plaintiff's decedent, al- leged to have been caused by defend- ant's willful conduct, the findings in the special verdict were that deceased entered onto defendant's track about half a mile in front of an approaching train going at about twenty miles an hour, and walked rapidly toward it. There was another person between de- ceased and the train, who stepped from the track in time to avoid being run over. Deceased, as he approached the train, waved his arms and hands above his head. The engineer saw the deceased at the time he entered on the track and signaled. There was no finding that the engineer's conduct was willful. Held, that judgment was properly rendered for defendant. Barr v. Chicago &c. R. Co., 10 Ind. App. 433, 37 N. E. 814. In a suit in the name of an administrator, for an injury causing the death of his intes- tate, the complaint need not negative contributory negligence by the admin- istrator. Indiana Mfg. Co. v. Milli- 42 — Pro. Law. 658 INDIANA PROBATE LAW. § 400 The complaint must also show that the death for which the action is brought occurred within two years prior to the com- mencement of the suit.*^^ A husband has a right of action against a physician for mal- practice for loss of the wife's services, and where her death results from such malpractice, her personal representative would have a right of action under this statute.*'' can, 87 Iiul. 87. Where a complaint for damages resulting from the death of a person by the wrongful act of another, judged by its general scope and tenor, shows that the deceased left next of kin, and that the action is prosecuted by an administrator in his representative capacity, it is suf- ficient if it states a cause of action in his favor in that capacity, although some persons are described as next of kin who are not such. Clore v. Mc- Intire, 120 Ind. 262, 22 N. E. 128. A complaint to recover damages for the death of a person must show that the death resulted from the negligent acts charged. Louisville &c. R. Co. v. Thompson, 107 Ind. 442, 8 N. E. 18, 9 N. E. 357, 57 Am. Rep. 120; City of Greencastle v. Martin, 74 Ind. 449, 39 Am. Rep. 93 ; Pennsylvania Co. v. Gallcntine, 11 Ind. 322; Cincinnati &c. R. Co. v. Hiltzhauer, 99 Ind. 486; Pittsburgh &c. R. Co. v. Conn, 104 Ind. 64, 3 N. E. 636; Louisville &c. R. Co. v. Wood, 113 Ind. 544, 14 N. E. 572, 16 N. E. 197; Board of Com'rs v. Pearson, 120 Ind. 426, 22 N. E. 134, 16 Am. St. 325n ; Ohio &c. R. Co. v. Engrer, 4 Ind. App. 261, 30 N. E. 924. *' Hanna v. Jefifersonville R. Co., 32 Ind. 113. A defendant is not a com- petent witness generally, in his own behalf, in actions to recover for the death of a person. Hudson v. Hou- ser, 123 Ind. 309, 24 N. E. 243. The action cannot be maintained against the personal representatives of the wrongdoer. Hamilton v. Jones, 125 Ind. 176, 25 N. E. 192. To constitute a willful injury, the act which pro- duced it must have been intentional, or must have been done under such circumstances as evinced a reckless disregard for the safety of others, and a willingness to inflict the injury com- plained of. It involves conduct which is quasi criminal. Louisville &c. R. Co. v. Bryan, 107 Ind. 51, 7 N. E. 807; Pittsburgh &c. R. Co. v. Judd, 10 Ind. App. 213, 36 N. E. 775. A complaint against a railroad company, to be good as charging willfulness in the killing by a train of cars of a person for whose death damages are sought to be recovered, must show that the de- ceased was purposely or willfully killed, or that the train was purposely or willfully run upon him. It is not sufficient to charge that the acts in the management of the train, resulting in the death, were purposely and will- fully done. Chicago &c. R. Co. v. Hedges, 105 Ind. 398, 7 N. E. 801. In an action against a city by the repre- sentative of a person whose death is alleged to have been caused by the defendant's negligence, evidence that the deceased left his family in a des- titute condition is incompetent. City of Delphi V. Lowery, 74 Ind. 520, 39 Am. Rep. 98; Mayhew v. Burns, 103 Ind. 328, 2 N. E. 793. *' Long V. Morrison, 14 Ind. 595, 11 Am. Dec. 72. § 40I EXECUTORS AND ADMINISTRATORS' SUITS. 659 § 401. Construing statutes together. — The section of the statute under immediate consideration must be construed in con- nection with the following: "A father, or in case of his death, or desertion of his family, or imprisonment, the mother, may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward. But when the action is brought by the guardian for an injury to his ward, the damages shall inure to the benefit of his ward."^° These two sections of the statute may be reconciled and given effect to by holding one applicable to adults and the other to in- fants. Both sections are directed to one common object, that is, to provide a statutory action for injuries or death resulting to one from the wrongful act or omission of another. The pro- visions of one section are, in terms, limited to a case where the result of such act or omission is the injury or death of a child, and is so far exclusive of the provisions of the other section, which is general in its terms. The action for the death of a child must be brought by the father, or in case of his death, desertion, or imprisonment, by the mother, or by the guardian for his ward, but where there is neither father, mother nor guardian, the case not being otherwise provided for would then fall within the pro- visions of the other section, and the action might be brought by the personal representative of such child. ^^ There is, however, '" Burns' R. S. 1908, § 267. If the a wife and child the husband may re- death of a minor is wrongfully caused cover for both injuries in the same ac- his administrator cannot sue therefor tion. Cincinnati &c. R. Co. v. Ches- while the minor has a living parent, ter, 57 Ind. 297. A guardian can only unless such minor had been emanci- recover for expenditures paid out of pated. Berry v. Louisville &c. R. Co., the ward's estate. Louisville &c. R. 128 Ind. 484,' 28 N. E. 182. See Hecht Co. v. Goodykoontz, 119 Ind. HI, 21 v. Ohio &c. R. Co., 132 Ind. 507, 32 N. N. E. 472, 12 Am. St. 371n. An ad- E. 302. To recover damages for loss ministrator of a minor child cannot of service, they should be specially sue for the death of the child when averred. Pennsylvania Co. v. Lilly, 7Z the parents are living, unless the child Ind. 252. A widow may sue for the has been emancipated. Berry v. Louis- death of her infant child caused by ville &c. R. Co., 128 Ind. 484, 28 N. E. negligence. Ohio &c. R. Co. v. Tin- 182. dall, 13 Ind. 366, 74 Am. Dec. 259; "Berry v. Louisville &c. R. Co., 128 Pennsylvania Co. v. Long, 94 Ind. Ind. 484, 28 N. E. 182; Ohio &c. R. 250. If the same act causes injury to Co. v. Tindall, 13 Ind. 366, 74 Am. 66o INDIANA PROBATE LAW § 4or but one right of action which may exist in favor of the i)arent or in favor of the administrator, but the right is not in both, and but one recovery can be hach The word child must not be con- strued as equivalent to the word minor, but is limited in its ap- plication to one who occupies the position of a child to a parent as depending on him for support, protection and education. an-- "^^^^'t E 315 tate Held, that the complaint showed teller, 120 Ind. 319, 22 ^. E. 315. 6/0 INDIANA PROBATE LAW. § 4O4 fense, though a separate action could not be maintained upon it.**'' And where a debtor has had no opportunity to assert a claim in his favor as a set-off against a debt due from him to an estate pending the administration of such estate, he may do so after the final settlement against a distributee.*" Judgments may be set off against each other ; but the question as to whether a judgment in favor of an estate ought to be set off and canceled by one against it, is not affected by the solvency of the estate on the one hand, or its insolvency on the other. The law requires that there shall be mutuality in the claims or judg- ments attempted to be set off. As is said in one case : "There are obvious reasons for this rule. To allow a set-off to a debtor of an indebtedness that did not exist at the time of the death of the decedent, or to permit a liability incurred by the personal repre- sentative to be pleaded as a set-off to a debt due the decedent in his lifetime, would change the course of distribution of intestate estates."" The principle of mutuality, in such cases, requires that the debts should not only be due to and from the same persons, but in the same capacity.-" A judgment against an executor in his individual character cannot be set off against a judgment in his favor as such execu- tor, although he may also be sole legatee under the will by virtue of which he is acting.'^" And while, as a rule, only judgments may be set off against judgments, so that on motion one may be used to satisfy the other, yet. where there are some special circumstances, such as ^Tox V. Barker, 14 Ind. 309; Arm- ment for the excess of his claim, and strong V. Ceasar, 72 Ind. 280; War- the court did not give him such judg- ring V. Hill, 89 Ind. 497. In Huffman ment." V. Wyrick. 5 Ind. App. 183, 31 N. E. «" Huflfman v. Wyrick, 5 Ind. App. 823, it is said : "No one would ques- 183, 31 N. E. 823. tion the right of the appellee, if he "" Carter v. Compton, 79 Ind. 11; had actually paid the notes to the de- Quick v. Durham, 115 Ind. 302, 16 N. cedent during her lifetime, to plead E. 601. such payment in this action; and the "* Dayhuff v. Dayhuff, 27 Ind. 158; statute above quoted gave him the Harte v. Houchin, 50 Ind. Ill; Wel- right to treat the notes as paid by his born v. Coon, 57 Ind. 270. claim, upon the death of the decedent. ^ Hiatt v. Hiatt, 30 Ind. 190. * * * He was not entitled to judg- § 405 EXECUTORS AND ADMINISTRATORS' SUITS. 67 1 insolvency or non-residence, or other extraneous facts to form a basis for equity jurisdiction, an equitable set-off may be allowed by a claim not in judgment against one in judgment upon the ground that one demand is pro tanto, a satisfaction of the other, and that the real indebtedness is merely the balance. And this doctrine applies to executors and administrators where cross-de- mands exist between the estate and third parties. ^'^ § 405. Judgments against executors, etc. — Where a judg- ment has been taken against an executor or administrator in his representative capacity on a cause of action against the estate of his decedent, it must be paid out of the assets of the estate he represents, and is only nominally a judgment against him. It is a judgment against the estate upon which he administers, and is never to be paid unless the estate is able to pay it. The adminis- trator or executor is not, by such judgment, rendered absolutely liable for its payment. It would be error to render a judgment in such a case against him for the debt de bonis propriis.''^ Such a judgment is not within the statute authorizing replevin bail. Judgments which are made repleviable are those rendered against defendants in their personal capacities, which they are bound to pay absolutely out of their own property.**" No execution or other final process shall be issued on any al- lowance or judgment rendered upon a claim against a decedent's estate for the collection thereof, out of the assets of the estate, but all such claims shall be paid by the executor or administrator in full, or pro rata in due course of administration.®^ The property of a decedent's estate in the hands of the dece- dent's administrator to be administered is not subject to levy ^Reno V. Robertson, 41 Ind. 567; such, to be paid out of the estate o£ Lindsay v. Jackson, 2 Paige (N. Y.) the deceased, is not substantially, but 580; Keightley v. Walls, 24 Ind. 205. merely nominalh-, a judgment against " Egbert v. State, 4 Ind. 399 ; Song- him." er V. Walker, 1 Blackf. (Ind.) 251; "Egbert v. State, 4 Ind. 399; Tay- Steinmetz v. State, 47 Ind. 465. "A lor v. Russell, 75 Ind. 386. judgment against an administrator, as ^^ Burns' R. S. 1908, § 2845. 672 IMJIAXA PROBATE LAW. § 405 and sale under an ordinary execution issued on a judgment against such administrator.'*^ Tiiere is only one instance under the law as it now is in this state where an execution may be levied upon the property of a decedent in the hands of his executor or administrator; if the judgment be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants of real property, or trustees, it shall require the sheriff to satisfy the judgment out of such property."^ In construing this clause of the statute the court says, "Under our law there is but one case in which the property of a decedent in the liands of his administrator can be sold upon execution, and that is where the judgment upon which the execution issues directs the sale of certain specified proi)erty. in the hands of the administrator, to satisfy said judgment. In all- other cases the spirit and intention of the law of this state for the settlement of decedents' estates are in direct conflict with the idea that any part of a decedent's estate, in the hands of his administrator, to be administered, can be subject to levy and sale on execution, issued on a judgment against the administrator. * * * It is obvious, we think, that the scheme and purpose of the statute providing for the settlement of decedents' estates, and for the just and equal payment of the decedents' creditors, according to their priority, would be defeated if the property of the decedent, in the hands of his administrator to be administered, were subject to le\y and sale on execution, issued on a judgment against the administrator; we have no statute in this state, except the one above referred to in the particular case therein mentioned, which authorizes such levy and sale on execution of the property of the decedent in the hands of the administrator or a judgment against the admin- istrator; and without express legislative authority therefor it "Johnson v. Meier, 62 Ind. 98. decedent's estate, there ought not to Where an administrator is sued in his be a judgment against him for costs, individual capacity for the recovery of iNIackey v. Ballou. 112 Ind. 198, 13 X. personal property of which he had E. 715. taken possession in his representative "^ Burns' R. S. 1908, § 724, Clause 2. capacity, believing it to belong to the § 406 EXECUTORS AND ADMINISTRATORS' SUITS. 673 seems clear to us that the courts of this state have no power to order and direct that a judgment against an administrator, but for the sale of specific property, should be levied of the property of the decedent in the hands of the administrator."^*' § 406. Proceedings after judgment.—A party in whose fa- vor judgment has heretofore, or shall hereafter, be rendered may, at any time within ten years after the entry- of judgment, pro- ceed to enforce the same by execution. °' Under this statute executors and administrators may have execution upon judgments obtained by them upon demands and claims due the estate of their decedent. They may also have exe- cution and other legal process upon any judgment obtained by the decedent in his lifetime, or by any preceding executor or admin- istrator. The statute reads: "Any executor or administrator shall have power to prosecute any writ of error or appeal taken by the testator or intestate, or by his predecessor, and he may have execution and other legal process issued on any judgment obtained by the testator or intestate, or by his predecessor in the trust, without reviving the same by scire facias or any other notice to the judgment defendant."^' When an execution de- fendant shall die after levy and before sale, the property levied on shall be sold in the same manner as if he were alive; but if no levy has been made in such case, such execution shall be returned without further proceedings and its lien on the goods of the defendant divested; and if the plaintiff die after execution has issued, the same shall be executed and returned as if such plaintiff were living. ''^ Under this statute if the judgment plaintiff die after execution has been issued, it may nevertheless be executed and the money arising therefrom be paid to his executor or administrator; or if such plaintiff has appointed no executor, and administration ''Johnson v. Meier, 62 Ind. 98; '' Burns' R. S. 1908, § 2812; Wyant Daily v. Robinson, 86 Ind. 382; Right v. Wyant, 38 Ind. 48; Mavity v. East- V. Taylor, 97 Ind. 392; Bowman v. ridge, 67 Ind. 211. Citizens' Nat. Bank, 25 Ind. App. 38, ''Bums' R. S. 1908, § 1818; Murray 56 N. E. 39. V. Buchanan, 7 Blackf. (Ind.) 549; " Burns' R. S. 1908, § 716. Egbert v. Mercer, 66 Ind. 305. 43 — Pro. Law. 674 INDIANA PROBATE LAW. ?$ 4O7 has not been granted on his estate, the money mnst be brought into court and deposited until there be some one authorized to receive it.^ While it is error in a judgment against an executor or ad- ministrator in his representative capacity, to direct execution to be levied against him personally, yet if a judgment is so entered it will be binding upon him until modified or reversed.* § 407. Effect of death of party to judgment. — At common law where a sole plaintiff died after judgment and before execu- tion, though the death occurred within a year from the rendition of the judgment, his personal representatives could not have exe- cution without reviving the judgment ;•' but this statute now makes such revivor unnecessary, and yet, although a revivor is made unnecessar\\ the statute docs not take away the com- mon-law rights of having such judgments revived in proper cases.* By the provisions of § 1566, Burns' R. S. 1894. such re- vivor is still expressly authori;;ed in judgments before justices of the peace. The statute says : *'J"flg"ie"ts in favor of any deceased person may be revived in favor of his personal representatives on complaint and summons." The same rules of law in regard to this matter apply to foreign executors and administrators of judgment creditors as apply to resident ones." The rule of law is different where a judgment-debtor dies be- fore the enforcement of the judgment against him by execution. * Murray v. Buchanan, 7 Blackf. money; or if the plaintiff has made (Ind.) 549; Mavity v. Eastridge, 67 no executor, or administration is not Ind. 211; Doe v. Hayes, 4 Ind. 117; granted, the money must be brought Ewing V. Hatfield, 17 Ind. 513. into court and deposited, until there 'State V. Ritter, 20 Ind. 406; Evans be a representative to receive it." Doe V. Newland, 34 Ind. 112; Cavanaugh v. Hayes, 4 Ind. 117; Egbert v. Mer- V. Toledo &c. R. Co., 49 Ind. 149 ; cer. 66 Ind. 305. Mackey v. Ballon, 112 Ind. 198, 13 N. ■* Wyant v. Wyant, 38 Ind. 48; Arm- E_ 715. strong v. McLaughlin, 49 Ind. 370; » Williams' Executors, 806. In Mur- Egbert v. ?^Iercer, 66 Ind. 305 ; Mavity ray v. Buchanan. 7 Blackf. (Ind.) 549, v. Eastridge, 67 Ind. 211. it is said: "If the plaintiff die after a ' Jeffersonville &c. R. Co. v. Hen- fieri facias is sued out, it may be ex- dricks, 41 Ind. 48; Thomasson v. ecuted notwithstanding, and his exec- Brown, 43 Ind. 203. utor or administrator shall have the § 407 EXECUTORS AND ADMINISTRATORS' SUITS. 675 It then becomes necessary for the judgment-plaintiff to have the judgment revived against the heirs and personal representatives of such deceased debtor. The statute provides that, ''in case of the death of any judgment-debtor, the heirs, devisees or legatees of such debtor, or the tenant of real property owned by him and affected by the judgment, and the personal representatives of the decedent, may, after the expiration of one year from the time of granting letters testamentary or of administration upon the estate of the decedent, be summoned to show cause why the judgment should not be enforced against the estate of the judgment-debtor in their hands respectively.'"' "The judgment- creditor, his representative or attorney, shall file an affidavit that the judgment has not been satisfied, to his knowledge or information and belief, and shall specify the amount due thereon, and the property sought to be charged."^ "A summons shall be issued, sen-ed and returned, or publi- cation may be made as in other cases; issues shall be formed and tried as in an original suit; and the court shall order the property in the hands of the heirs, devisees or legatees, or in the hands of the tenant of real property, to be sold to pay the judgment."* ' Burns' R. S. 1908, § 651. Enforc- er v. Gilbert, 80 Ind. 107. The statute ing a judgment against the lands of a contemplates the filing of proceedings, deceased judgment-debtor cannot af- forming of issues, and a trial as in feet the interest of his widow in such ordinary civil actions. Faulkner v. lands, nor does the words "tenant of Larrabee, Id Ind. 154. Proceedings real property" apply to her, though to revive a judgment against the heirs she may be living on the lands. They of the judgment-defendant, so as to apply to a person who holds as a ten- have execution against lands inherited ant under a lease. Hill v. Sutton, 47 by them, must be brought in the court Ind. 592. The right to have the lands where the judgment was rendered, sold to pay the judgment must be en- and an independent suit therefor in forced before the lien of the judgment another county, where a transcript expires. Jones v. Detchon, 91 Ind. has been filed, to obtain a lien, cannot 1^4- be maintained, where the lands, with- ' Burns' R. S. 1908, § 652. out fraud, have passed to a purchaser. * Burns' R. S. 1908, § 653. Where Thompson v. Parker, 83 Ind. 96; Con- a judgment-defendant dies before ex- ner v. Neff, 2 Ind. App. 364, 27 N. E. ecution issued, the lien of the judg- 645. ment must be enforced by suit. Deck- 676 INDIANA PROBATE LAW. § 407 In an action to enforce a judgment against the real estate of a deceased judgment-debtor under these statutes, the complaint must show that the personal estate of such decedent has been exhausted, or is insufficient to pay the judgment, otherwise it will be bad on demurrer." This for the reason that the personal estate of a decedent is the primary fund out of which his debts must be paid.^" Such application cannot be made until after the expiration of a year from the granting of letters upon the deceased debtor's estate. In so far the sections above set out must be construed with § 2847, Burns' R. S. 1908.'^ Under these statutes, upon the death of a judgment-debtor after judgment and before the issuing of an execution thereon, no execution can be issued without reviving the judgment against the personal representatives, heirs, etc., of such deceased debtor.^- It is a settled rule of the common law that an execution can- not be issued after the death of the execution-debtor which will authorize the sale of real estate bound by the lien of the judg- ment; and when a person who was not a party to the original judgment becomes, by the death of the execution-defendant, an owner of the real estate affected by the judgment, the common law required that he should be made a party by scire facias, before an execution could rightfully issue. These statutes pro- vide that in case of the death of any judgment-debtor, the heirs of such debtor may, after the expiration of one year from the time of granting letters of administration, be summoned to show • Pauley v. Langdon, 83 Ind. 353 ; " Levering v. King, 97 Ind. 130. An Allen V. Vestal, 60 Ind. 245. A judg- application to enforce a judgment ment of foreclosure of a mortgage against a decedent's estate, cannot be merges the cause of action on the objected to by the tenant of real es- mortgage, but not its specific lien, tate, against which it is sought to en- and such judgment may be revived as force the judgment, on the ground against the grantee of the mortgagor that the application fails to show after the expiration of ten years from whether or not there are assets in the its entry and within twenty years from hands of the administrator. Cox v. the date of the mortgage. Evansville Stout, 85 Ind. 422. Gas Light Co. v. State, IZ Ind. 219, 38 " Louden v. Day, 6 Ind. 7 ; State v. Am. Rep. 129n, Michaels, 8 Blackf. (Ind.) 436. " Chandler v. Chandler, 78 Ind. 417. § 407 EXECUTORS AND ADMINISTRATORS* SUITS. ^y^J cause why the judgment should not be enforced. The rule is substantially the same as at common law." In one case the court says : "A party summoned is to show cause why the judgment should not be enforced against the property in his hands. If it is sought to charge any specific property it should be designated. If the judgment ought not to be enforced against property in the hands of one of the de- fendants because it ought to be paid with assets primarily lia- ble in the hands of another person, this would seem to be proper matter for such defendant's answer. Though, in pur- suance of the words of the statute, the personal representative be summoned, if he in fact have no assets, it could make no difference to other defendants that this fact was not alleged in the affidavit; and if he have assets which should be applied on the judgment, such application would lessen the burden of the other defendants, and, therefore, would be matter of defense for them; and his possession of such assets would not seem to lie more in the knowledge of the plaintiff, whose averments must be made under oath, than in that of the tenant of real prop- erty."^* "Faulkner v. Larrabee, 76 Ind. 154; pointed at the instance of the judg- Decker v. Gilbert, 80 Ind. 107. J. ob- ment creditor. Jones v. Detchon, 91 tained a judgment against R., which Ind. 154. became a lien on the lands of the lat- " Cox v. Stout, 85 Ind. 422. § 406, ter on the 18th of March, 1868. In Code of 1852, providing for the issu- November, 1867, R. disappeared, and ing of execution, does not apply when was not afterward heard of, but no the judgment debtor has died, and his administrator of his estate was ap- land has passed into the hands of his pointed until November, 1879, and heirs. For the enforcement of a judg- after that a suit was begun to enforce ment against real estate of a deceased the lien of the judgment against lands judgment debtor in the hands of his of which R. was seized when the judg- heirs, there must be, under § 642, et ment was rendered. Held, that the seq.. Code of 1852, proper pleadings, lien was lost by delay. Held, that the and the decision of the issues by a death of R.. presumed to have oc- regular trial ; and a complaint, in such curred in November, 1872, did not re- case, which fails to show that any strain proceedings to enforce the lien property of the decedent has come until after his administrator was actu- into the hands of the heir against ally appointed in 1879, but only until whom relief is sought is insufficient, an administrator might have been ap- Faulkner v. Larabee, 76 Ind. 154. 678 INDIANA PROBATE LAW. § 408 It is a good plea in bar of such action that the judgment de- fendant did not die seized in fee-simple of the real estate sought to be subjected to execution. ^^ The statute seems intended to embrace any judgment or exe- cution that may reach the personal or real estate of the dece- dent that may be made assets in the hands of the executor or administrator for the payment of debts. ^" As tlje personal representative is a necessaiy party to an action under these statutes, the af^davit or sworn complaint should show the death of the judgment-debtor and the appointment of an administrator.'' § 408. Proceedings — How long delayed, — The enforce- ment of any judgment rendered against a decedent in his lifetime is suspended for one year from the death of such decedent.'^ And proceedings against the heirs, devisees, legatees, personal representatives, etc., of the deceased judgment-debtor, to require them to show cause why the judgment should not be enforced, may be begun, "after the expiration of one year from the time of granting letters testamentary, or of administration uix)n the estate of the decedent. "''' The death of a judgment-debtor need not long delay the judgment-creditor from proceeding on his judgment. The mean- ing of the word "restrained," in § 617, Burns' R. S. 1894. is to be hindered and prevented, and does not mean a voluntary delay. "Armstrong v. Milligan, 6 Blackf. "Joyce v. Hufford, 7 Blackf. (Ind.) (Ind.) 463. Where a person has ac- 382. In an appHcation to enforce a quired a lien on real estate by the judgment, it is not error to put in evi- filing and docketing of a justice's dence a record showing that there has transcript in the clerk's office, and the been an injunction restraining the sale debtor afterward has conveyed the on e-xecution of lands to satisfy the land to a third person, and afterward, judgment. Cox v. Stout, 85 Ind. 422. and before the clerk has issued execu- "Walker v. Hood, 5 Blackf. (Ind.) tion, said debtor has died, the creditor 266; Bryer v. Chase, 8 Blackf. (Ind.) must enforce his lien by suit. The 508, 46 Am. Dec. 489. complaint to enforce such lien need " Burns' R. S. 1908. § 2847. not allege that there is no property of "Burns' R. S. 1908, § 651, Lovering the estate of the debtor out of which v. King, 97 Ind. 130. the judgment can be made. Decker v. Gilbert, 80 Ind. 107. § 409 EXECUTORS AND ADMINISTRATORS' SUITS. 679 The law provides that any time after the death of an intestate, letters of administration shall be granted, first to the widow, second to the next of kin, third to the largest creditor, and if no person apply within twenty days after the death of the intestate, the clerk or court shall appoint a competent inhabitant of the county, to whom letters shall issue. When he has power to act, he is not restrained, and under the law he \vill be hindered from proceeding on his judgment no longer than such a time as he might have been appointed administrator, or might have had some one else appointed, and for one year thereafter.-'' § 409. Revivor of judgment. — In all actions where a sole defendant dies after judgment and before execution, the judg- ment must be revived, either against his personal representatives, or the heirs, devisees, or terre-tenants, as the case may be, and an execution issued after the death of such defendant without the revivor of the judgment would be void.'' The personal representatives of such decedent are necessary parties to any action to revive such judgment," and the complaint in such action should show the death of the judgment-debtor and the ap- pointment, if any had been made, of an executor or administra- tor of his estate.'' And where heirs and terre-tenants are made defendants to an action to revive a judgment, the complaint should show that property of the decedent came to their hands, as such judgment is to be enforced against the property found in their hands respectively.'* The proper judgment in such proceedings is, that the money be made out of the assets of the decedent in the hands of his personal representative; but if they are not sufficient then out of the property found in the hands of the heirs, devisees, lega- tees, or terre-tenants." As the lands of a decedent are not pri- marily assets in the hands of his executor or administrator, the ^ Jones V. Detchon, 91 Ind. 154. "-= Walker v. Hood, 5 Blackf. (Ind.) ^Statev. Michaels, 8 Blackf. (Ind.) 266. t j ic. 436- Decker v. Gilbert, 80 Ind. 107. ^Faulkner v. Larrabee, n Ind. 154. "Bryer v. Chase, 8 Blackf. (Ind.) "Graves v. Skeels, 6 Ind. 107; 508 46 Am. Dec. 489. Faulkner v. Larrabee, Id Ind. 154. 68o INDIANA PROBATE LAW. § 4IO law contemplates that before they shall be subjected to the pay- ment of his debts, the representatives of such real estate shall have an opportunity to be heard. For this reason, no real estate of a decedent shall be subject to execution on any judgment against him in his lifetime, or against his executor or admin- istrator, unless the heirs, devisees, and terre-tenants of such real estate first be made parties to such judgment in the manner pre- scribed by the statute.-" And it is necessary that they have notice of any proceeding to revive a judgment by making them parties thereto.-^ The complaint should make the tenants of the real property parties to the action, or aver that there are none.-"" Proceedings to revive a judgment must be brought in the court where the judgment was rendered. -° § 410. Liability for costs. — The statute provides that an administrator or executor shall not be liable, in any suit in his individual capacity, for the costs of such suit.^** At common law neither party to an action recovered costs, and the general rule was that when an executor or administra- tor sued as such he was not personally liable for the costs, but they were to be levied of the goods and chattels of the estate to be administered. But it was otherwise if the executor or administrator sued in his individual capacity, as on a contract made with himself as executor or administrator, or for trover or conversion of the decedent's goods during his own time, in which case, although he may name himself as executor or admin- istrator, yet if he failed in the suit he was compelled to pay the costs. And if he knowingly brought a wrong action, or was guilty of a wilful default, or failed to prosecute his suit, he was held personally liable for costs. ^^ =* Joiner v. Sanders, 5 Blackf. =^ Thompson v. Parker. 83 Ind. 96. (Ind.) 378. ^» Burns' R. S. 1908, § 2808. ==" Elliott V. Moore, 5 Blackf. (Ind.) '^ Harrison v. Warner, 1 Blackf. 270. (Ind.) 385; see notes to this case; '* Williams v. Morehouse, 6 Blackf. Pollard v. Buttery, 3 Blackf. (Ind.) (Ind.) 215; Welborn v. Jolly, 4 239 ; Crane v. Hopkins, 6 Ind. 44. Blackf. (Ind.) 279; Armstrong v. Milligan, 6 Blackf. (Ind.) 463. § 4IO EXECUTORS AND ADMINISTRATORS' SUITS. 68 1 Under the above rules of law an executor or administrator being a stranger to the affairs of the deceased, was not consid- ered liable for costs when he acted in good faith and could not have sued in his own right. ^- A joint suit against an executor or administrator and the co- obligor of the decedent upon a joint, or joint and several obliga- tion, is, in respect to costs, governed by the ordinar)^ rules of the civil code and not by the provisions of the act for the settlement of decedents' estates.^^ An administrator prosecuting an action in which the estate has no interest and can derive no benefit, should be charged with the costs. The expense of such litigation should not in such case be charged against the estate.'' It is the duty of the administrator to bring all suits necessar}^ to collect the debts of the estate and to protect and preserve the property, and if he is defeated in such actions he is not liable for the costs in his individual capac- ity, but they should be paid out of the assets of the estate, and a judgment for costs should be so rendered. It is also settled that whatever reasonable costs and expenses an administrator is put ^Cooper V. Thatcher, 3 Blackf. Bank, 82 Ind. 21. Where an admin- (Ind.) 59. istrator knowingly brings a wrong ac- ^Lamson v. First Nat. Bank, 82 tion, it will be dismissed at his own Ind. 21. The estate of a deceased ad- cost. Raugh v. Weis, 138 Ind. 42, 37 ministrator cannot be subjected to the N. E. 331. Where an administrator is costs of a suit, unless the administra- sued in his individual capacity for the tor had neglected some duty, or unless recovery of personal property of he had been guilty of some default, which he has taken possession in his for which a suit might have been representative capacity, believing it to maintained against him had he lived, belong to the decedent's estate, the Lucas V. Donaldson, 117 Ind. 139, 19 costs which he incurs, in good faith, X. E. 758. A joint suit against an ad- in defense of the suit, and which are ministrator or executor and the co- taxed against him personally, are a obligor of the deceased, upon a joint proper charge against the estate, or joint and several obligation, is gov- :Mackey v. Ballou, 112 Ind. 198, 13 N. erned in respect to costs by the rules E. 715. of the code, and not by § 62 of the act ** Cullen v. State, 28 Ind. App. 33o, concerning decedent's estates, 2 R. S. 62 N. E. 759. 1852, p. 260. Lamson v. First Nat. 682 INDIANA PROBATE LAW. § 4IO to in defending suits brought against the estate should be allowed him although he may not have succeeded in such defense. ^^ An executor or administrator is not bound to abandon property of his decedent upon any claim made to it by others. It is his dut}- to protect and preserve the property to the estate by all proper means, including a proper defense in a litigation ; and for the costs in such a defense he ought not to be made personally lia- ble. It is within the meaning of this statute that he should not be held personally liable for costs which may accrue in a defense against claims of others to property which he has taken posses- sion of in good faith as the property of the estate. Xor does it make any difference whether the action be instituted against him personally or in his representative character, the estate should be charged with the costs.^" In an action by an executor or administrator to recover prop- erty of the estate, it is error to decree the costs of such suit against him personally: but if this is done such decree will be effective until corrected in some legal manner.^' The statute provides that non-resident executors or adminis- trators appointed in any other state or country may prosecute any suit in any court in this state, as such executor or admin- istrator, in like manner and under like restrictions as a resi- dent; but he shall give bond for costs under the law regulating the maintaining of suits by other non-resident citizens. ^^ "Bruning v. Golden, 159 Ind. 199, '' Burns' R. S. 1908, §§2816, 616; 64 N. E. 657. Jeffersonville &c. R. Co. v. Hendricks, =" Mackey V. Ballou, 112 Ind. 198, 13 41 Ind. 48; Griggs v. Voorhies, 7 N. E. 715. Blackf. (Ind.) 561. " State V. Ritter, 20 Ind. 406. CHAPTER XIX. COMPETENCY OF WITNESSES. § 411. The common-law rule as to § 420. The statutes construed to- parties. gether. 412. The rule in Indiana. 421. As to testimony of decedent's 413. When executor or administra- agent. tor a party. 422. When assignor or grantor ex- 414. Same — Adverse interest. eluded. 415. In case of joint interest. 423. When executors and adminis- 416. As to admissions and declara- trators are defendants. tions. 424. Adverse party required to tes- 417. Cases in which statute does not tify. apply. 425. Unjust claim — Claimant's testi- 418. Competency in contest of wills. mony. 419. When heirs or devisees are parties. §411. The common-law rule as to parties. — At common law the rule as laid down is, that a party to the suit on record cannot be a witness for himself or for a joint suitor against the adverse party, on account of the immediate and direct inter- est which he has, either from having a certain benefit or loss, or from being liable to costs. ^ It is said "the rule which ex- cludes a party from giving evidence in his own cause is not founded merely on the consideration of his interest, but partly, at least, on a principle of policy for the prevention of perjury."^ And in one case it is said that the foundation of the rule is the interest which the party has in the event of the suit, both as to costs and the subject-matter.^ ^Phillips' Ev. 56; Haswell v. Buss- " Starkie on Ev. 1061. ing, 10 Johns (N. Y.) 128; Sharpe v. nVillings v. Consequa, 1 Pet. (U. Thatcher, 2 Dall. (U. S.) 11, 1 L. ed. S.) 301. 296. 683 684 INDIANA PROBATE LAW. §411 This common-law disability of parties to testify in their own behalf has been removed by legislation; and while the rule as to competency established by statute generally permits parties to actions to testify, yet it has been found necessan' to except from the operation of the statute all cases in which one of the parties had died, became insane, or was for any reason legally disquali- fied from testifying.* The object of such exceptions being ''to guard against false testimony by the survivor, and in order to do this it establishes a rule of mutuality by which, when the lips of one contracting party are closed by death, the lips of the other are closed by the law.'"^ When this rule prevailed in Indiana it was held that although an administrator could not be held personally liable for costs, yet in relation to such costs, and the liability of the assets of the estate in his hands for their payment, he was unquestionably interested in the subject-matter of the suit, and was therefore not a competent witness in a suit against the estate in his case.® As it has been held that the purpose of the various enabling^ statutes, relieving the strictness of the common law as to the competency of parties to testify, is to increase the sources of light by which to discover the truth of the respective allegations, not to diminish them by disabling any one who was competent to testify before, therefore all questions arising in connection with the competency of a party should be determined and the statute construed in harmony with this principle.^ On the other hand the object of the exception must not be lost sight of, which is to avoid the injustice that might follow the admission of testi- * Pendill v. Neuberger, 64 Mich. 220, ' McKay v. Riley, 135 111. 586, 26 N. 31 N. W. 177; Hudson v. Houser, E. 525; Curry v. Curry, 114 Pa. St- 123 Ind. 309, 24 N. E. 243 ; Cowan v. 367, 7 Atl. 61 ; Kuhn v. Germania Life Musgrave, IZ Iowa 384, 35 N. W. Ins. Co., 71 Mo. App. 305 ; Leggett v. 496. Glover, 71 X. Car. 211; Strickland v. 'Williams v. Edwards, 94 Mo. 447, Wynn, 51 Ga. 600; Adams v. Board 7 S. W. 429; Malady v. McEnary, 30 of Trustees, Zl Fla. 266, 20 So. 266; Ind. 273. Sheehan v. Hennessey, 65 N. H. 101, 'Sinks V. English, 3 Blackf. (Ind.) 18 Atl. 652. 138. § 412 COMPETENCY OF WITNESSES. 685 mony in behalf of one whose adversary can neither contradict, •correct, nor explain it.^ § 412. The rule in Indiana. — The rule laid down in the foregoing section as to the competency of parties to actions pre- vailed for some time in this state, but in 1861 it was abolished, and the general rule now is that all parties to a civil action are <:ompetent witnesses in their own behalf, or in behalf of other parties to such action.'' But this general rule has its exceptions, and among them are executors, administrators, heirs, devisees, and parties whose in- terests are adverse to a decedent's estate/*' So far as the competency of an executor or administrator is concerned in suits or proceedings involving matters which oc- curred during the lifetime of the decedent, the rule of the com- mon law yet practically prevails, and the parties named in the Statutory exceptions are incompetent to testify in the cases therein mentioned. The object of the legislature in making these exceptions to the general statute which gives parties to suits the right to testify therein, was to prohibit a party litigant from testifying in his own behalf where the other party to the transaction is dead, and therefore not available as a witness, and thus permit the robbing of estates by the perjury of parties contending with them.^^ The object of these exceptions is to limit and restrain the operation of the general statute which removes the disabilities of parties and renders them competent witnesses, and prevent it from applying in all suits where an executor or administrator or guardian is a party, and in all suits by or against heirs. ^" And in giving effect to these exceptions courts must give heed to the spirit and purpose of their enactment and not simply halt • Meier v. Thieman, 90 Mo. 433, 2 S. " Upton v. Adams, 27 Ind. 432 ; W. 435 ; Kumpe v. Coons, 63 Ala. 448. Martin v. Asher, 25 Ind. 237 ; Jenks v. 'Burns' R. S. 1908, § 519; Coble v. Opp, 43 Ind. 108; Hoadley v. Hadley, McClintock, 10 Ind. App. 562, 38 N. 48 Ind. 452. E. 74. " Ketcham v. Hill, 42 Ind. 64. " Burns' R. S. 1908, §§ 521, 522, 523, 526. 686 INDIANA PROBATE LAW. § 413 at the letter of the statute. As Lord Coke says : "He who con- siders merely the letter of an instrument goes but skin deep into its meaning."^^ It was said in one case : "We regard it as a sound rule to be applied in the construction of these statutes, that they should not be extended beyond their letter, when the effect is to add to the list of those rendered incompetent.''^^ In many of the states the incompetency of interested parties is limited to matters or facts, the knowledge of which came to them from communications by or transactions with the deceased, leaving their competency in all other respect? unaffected by the exception. ^^ § 413. When executor or administrator a party. — The first exception to the general rule is found in the following statute : "In suits or proceedings where an executor or admin- istrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be made or rendered for or against the estate represented by such executor or administrator, any person who is a necessary party to the issue or record, whose interest is adverse to such estate, shall not be a competent witness as to such matters against such estate : Provided, however. That in cases where a deposition of such decedent has been taken, or he has previously testified as to the matter, and his testimony or deposition can be used as evidence for such executor or administrator, such adverse party shall be a competent witness for himself, but only as to any matters em- braced in such deposition or testimony."^*' To be excluded as incompetent the witness must be a necessary party either to the issue or the record, and his or her interest must be adverse to the estate.^^ ''Clift V. Shockley, 11 Ind. 297; Kroh v. Hcins, 48 Xeb. 691, 67 N. W. Goodwin v. Goodwin, 48 Ind. 584; 771; Giles v. Wright, 26 Ark. 476; Merritt v. Straw, 6 Ind. App. 360, 2sZ Harrington v. Samples, 36 Minn. 200, N. E. 657; Orndorf v. Jeffries, 46 Ind. 30 N. W. 671. App. 254, 91 N. E. 608. " Burns' R. S. 1908, § 521 ; Zimmer- " St. John V. Lofland, 5 N. Dak. man v. Beatson, 39 Ind. App. 664, 79 140, 64 N. W. 930. N. E. 518, 80 X. E. 165; Miedreich v. "Pinney v. Orth, 88 N. Y. 447; Frye, 41 Ind. App. 317, 83 N. E. 752. "Walker v. Steele, 121 Ind. 436, 22 §413 COMPETENCY OF WITNESSES. 68/ The purpose of the section is to protect the estates of deceased persons from the danger of permitting a surviving party to a contract or transaction to testify in respect to it after death has closed the lips of the other party.^* Where a party to a con- tract or transaction is dead, and his rights in the contract or subject-matter have passed to another, who represents him in the action or proceeding, the true spirit of this section excludes the surviving party to the transaction from testifying in relation to matters pertaining thereto which occurred during the lifetime of the decedent/" The term party as used in the above statute means a party who has an interest in the issue and not merely a party to the record. A party to the record may not be a party to the issue to be tried, in fact may have no interest whatever in that issue. Where such is the case it would perhaps be improper to ex- clude his evidence; but where the party to the record is inter- ested in the issue raised for trial he would be incompetent.^'' Where, in a suit upon a claim against an estate, a witness has testified conceming an interview between the claimant and the decedent the claimant is not a competent witness to testify to such interview in rebuttal."^ X. E. 142, 23 N. E. 271. In a suit by 165, 9 N. E. 907; McConnell v. Hunt- an administrator against a husband ington, 108 Ind. 405, 8 X. E. 620. and wife to set aside an alleged fraud- ^ To render a partj^ incompetent to ulent conveyance, the defendants are testify he must be a necessary party to not excluded from testifying in their the issue, and not merely a party to own behalf that the property sought the record. One who disclaims any to be reached was purchased with the interest in the subject of litigation is wife's money, and the title taken in a competent witness. Starret v. Burk- the name of the husband without her halter, 86 Ind. 439; Spencer v. Rob- consent, and other matters relating to bins, 106 Ind. 580, 5 X^. E. 726; Mar- its purchase and improvement, al- tin v. Martin, 118 Ind. 227, 20 N. E. though they occurred prior to the 763 ;Walker v. Steele, 121 Ind. 436, 22 death of the decedent. Taylor v. X. E. 142, 23 X. E. 271 ; Scott v. Har- Duesterberg, 109 Ind. 165, 9 N. E. 907. ris, 127 Ind. 520, 27 X. E. 150 ; Sul- ^* Durham v. Shannon, 116 Ind. 403, livan v. Sullivan, 6 Ind. App. 65, Z2 19 N. E. 190, 9 Am. St. 860; Hudson X. E. 1132. V. Houser, 123 Ind. 309, 24 X. E. 243. ^ Allen v. Jones, 1 Ind. App. (^l, 27 "Taylor v. Duesterberg, 109 Ind. X. E. 116. 688 INDIANA PROBATE LAW. § 4^3 The statute only designs to place both parties upon an equal footing as nearly as possible, so where a decedent has testified or deposed, and his testimony or deposition can be used in favor of the estate, the adverse party then is rendered competent to testify as to the matters embraced in such decedent's deposition or testimony ; nor does such competency depend upon whether or not the deposition or testimony has been introduced and actually read in evidence on behalf of the executor or administrator. It is sufficient if such testimony or deposition could have been used by the estate. " And where the deceased has testified in his lifetime upon the trial of a cause in which he was a party, if, upon a re-trial of the cause after his death, his testimony on the fonner trial is used, the opposite party is competent to testify as to matters be- tween himself and such decedent upon the issues involved."^ The test of competency does not so much depend upon the particular fact to which an adverse party may be called upon to testify as upon the subject-matter of the action, the contract or matter involved in the issue. It is said in one case that where an administrator assails the title of another, such title having been acquired through a third party in a transaction to which the dece- dent was a stranger, the parties to the transaction cannot be pre- vented from speaking in reference to such matters, even though they occurred during the lifetime of a decedent. A contract or matter in which the decedent never had any concern or interest during his lifetime cannot be so involved in a suit by his personal representative as to preclude the parties interested in the trans- action, although it may come collaterally in question, from up- holding it by their own testimony.^* '^ Where the deposition of a de- administrator does not oflfer it in evi- ceased party, represented by her exec- dence, the adverse party himself hav- utor, has been read in evidence, the ing the right in such case to offer it to other party may testify upon all ma- show his competency. Coble v. Mc- terial points and matters of fact em- Clintock, 10 Ind. App. 562, 3S N. E. braced in such deposition. Hatton v. 74. Jones, 78 Ind. 466. An adverse party ^ Turpie v. Lowe, 158 Ind. 314, 62 is a competent witness where dece- N. E. 484, 92 Am. St. 310. dent's deposition is on file, though the ** Taylor v. Duesterberg, 109 Ind. 413 COMPETENCY OF WITNESSES. 689 The Supreme Court in one case says : "Three things must con- cur to exclude the testimony of the sur\'iving adversely inter- ested party: (i) The transaction, or the subject-matter thereof, must be in some way directly involved in the action or proceed- ing, and it must appear that one of the parties to the transaction about to be proved is dead. (2) The right of the deceased party must have passed, either by his own act or that of the law, to another, who represents him in the action or proceeding in the character of executor, administrator, or in some other manner in which he is authorized by law to bind the estate. (3) It must appear that the allowance to be made or the judgment to be ren- dered may either directly or indirectly affect the estate of the decedent. "■" While it is the duty of the courts to carefully scrutinize the evidence in support of claims against a decedent's estate for the purpose of preventing fraud, yet it must be kept in mind that the claimant, not being a competent witness, must rely largely upon circumstances and the testimony of others to prove his claim, and if such claim be fairly established, the court should allow it.'' The spirit, not the letter, of the statute, will be looked to in determining the competency of a witness.-' 165, 9 N. E. 907. In an action by an App. 34, 32 N. E. 333. A claimant administrator to set aside a transfer against an estate, where a witness has of a note and mortgage by a decedent, testified concerning an interview be- and have the same declared assets of tween the claimant and the decedent, the estate, a defendant, a residuary cannot testify, in rebuttal, as to what legatee, who is not a necessary party took place at such interview. x\llen v. to the record, and whose interests are Jones, 1 Ind. App. 63, 27 N. E. 116; not adverse to the estate, and who Kibler v. Potter, 11 Ind. App. 604, 39 neither claims nor holds an interest in X. E. 525. the note and mortgage, is a competent "' Merritt v. Straw, 6 Ind. App. 360, witness for the defendants. Walker 33 N. E. 657; Nelson v. Masterton, 2 V. Steele, 121 Ind. 436, 22 X. E. 142, Ind. App. 524, 28 X. E. 731 ; Allen v. 23 X. E. 271. Jones, 1 Ind. App. 63, 27 N. E. 116; "Durham v. Shannon, 116 Ind. 403, Eppert v. Hall, 133 Ind. 417, 31 X. E. 19 X. E. 190. 9 Am. St. 860; Goodwin 74, 32 X. E. 713. In an action against v. Bentley. 30 Ind. App. 477, 66 X. E. an administrator for the value of 496 ; Orndorf v. Jeffries, 46 Ind. App. services rendered his decedent, the 254,' 91 X. E. 608. claimant is not a competent witness in ='' Cunningham v. Packard, 6 Ind. her own behalf as to matters occur- Pro. Law. 690 INDIANA PROBATE LAW. § 41 4 The rule laid down in this statute does not apply to actions brought by an administrator to recover damages for the death of his decedent where such death is caused bv the wronerful act of another. The cases of Sherlock v. Ailing, 44 Ind. 184, and Hudson V. Hauser, 123 Ind. 309, 24 X. E. 243, to the contrary on this point being overruled."® § 414. Same — Adverse interest. — To render a witness in- competent under this statute he must not only be a necessary party to the issue or to the record, but he must have an interest in the litigation adverse to the estate. The adverse interest nec- essary to disqualify one as a witness must be a certain and vested interest.^" This statute was not intended to exclude the evidence of parties whose interest is favorable to the estate. It is only those parties whose interest is adverse to the estate, that the statute excludes.^" Where, in a suit by an executor or administrator against sev- eral defendants, one of them suffers judgment to go against him by default, such defendant is then a competent witness for his co-defendants in support of issues made by them in which said witness is not interested. ^^ ring in the decedent's lifetime. The Ind. App. 315. 52 X. E. 413: Ovvings v. fact that she only testified in rebuttal Jones, 151 Ind. 30, 51 X. E. 82; Zim- as to admissions proven to have been merman v. Beatson, 39 Ind. App. 664, made by her under oath, as a witness 79 X. E. 518, 80 N. E. 165. in another cause, during the decedent's ^° Sullivan v. Sullivan, 6 Ind. App. lifetime, does not render her a com- 65, 32 X. E. 1132. The statute, dis- petent witness. Xelson v. Masterton, qualifying certain persons to testify to 2 Ind. App. 524, 28 X. E. 731. A con- matters occurring during the lifetime versation between a claimant against of a decedent and affecting his estate, an estate and one of the heirs, though does not prohibit the plaintiff in an it may have occurred in the presence action of replevin brought against a of the testator, was not a matter purchaser at an administrator's sale to which occurred with the testator dur- recover possession of a horse sold as ing his lifetime, within the meaning property of the decedent, from testi- of the statute. Denny v. Denny, 123 fying that the decedent had made him Ind. 240, 23 N. E. 519. a gift of the animal. Durham v. Shan- =*Lake Erie &c. R. Co. v. Charman, non. 116 Ind. 403, 19 X. E. 190, 9 Am. 161 Ind. 95, 67 X. E. 923. St. 860. "* Payne v. Larter, 40 Ind. App. *" Upton v. Adams, 27 Ind. 432. In 425, 82 N. E. 96; Sloan v. Sloan, 21 a suit against the administrator of the § 414 COMPETENCY OF WITNESSES. 69I After judgment against a principal maker of a note he is a competent witness in a suit against the personal representative of a surety on the note to prove the fact that the surety had been discharged from liability by an extension of time for the payment of the note.^- And where one of several defendants has filed a disclaimer in the action, and has been adjudged to have no interest in the subject-matter of the action, such defendant is not a party in the meaning of the statute, and is not disqualified to testify in such action. ^^ A witness is not debarred from testifying in an action against a decedent's estate concerning matters which occurred during the decedent's lifetime, simply because he has an interest in such estate. Such interest must be adverse to the estate, and such witness a necessary party to the issue or to the record.^* Nor, where the question is one as to the competency of the witness, need the party introducing such witness state what he expects to prove by him.^^ In a suit against the estate of a decedent for contribution by one surety who had paid the note, a co-surety, principal debtor and his sureties, the allowance bj- the court is incompetent plaintiff might testify for himself, un- to testify as to the justness of the der the statute, if the administrator claim or the amount due thereon, consented. The sureties could not ob- Clift v. Shocklej-, 11 Ind. 297. In an ject in such case. Ferguson v. State, action by an executrix upon a contract 90 Ind. Z%. Under the act of March made with her testator by the defend- 15, 1879, a plaintiff, being incompe- ant, the latter is not a competent wit- tent as a witness, could not call as a ness. Hanlon v. Doherty, 109 Ind. Zl, witness a defendant who had a com- 9 X. E. 782. Where the plaintiff mon interest with the plaintiff, ad- stands as the representative of her verse to other defendants. Cupp v. mother, deceased, one of the contract- Ayers, 89 Ind. 60. ing parties, the defendant, the other ^ Starret v. Burkhalter, 86 Ind. 439. contracting part}% is not a competent *^ Martin v. Martin, 118 Ind. 227, 20 witness to testify as to matters which N. E. l(ih ; Spencer v. Robbins, 106 occurred between him and the def end- Ind. 580. 5 X. E. 726. ant during her lifetime, concerning •* Sullivan v. Sullivan, 6 Ind. App. the contract in dispute. Reddick v. 65, Z2 X. E. 1132. Where exceptions Keesling, 129 Ind. 128, 28 X. E. 316. to a report of an administrator have ^ Sullivan v. Sullivan, 6 Ind. App. been filed, a claimant to whom the ad- 65, Zl X'. E. 1132. ministrator has paid a claim without 692 INDIANA PROBATE LAW s 414 although not a party to the suit, is not a competent witness as to the question of suretysliip.^" One may be both a party to the issue antl a party to the record and yet not have an interest in the Htigation adverse to the estate. The party in such case is a competent witness for the estate,'^ It is not interest alone that disqualifies one. If the interest lay in the direction of protecting the estate, such interest does not render the witness incompetent.^^ Tlie statute in terms disqualifies only those who are necessary parties to the issue or record, whose interest is adverse to the estate, but in determining the competency of a witness, the ac- cepted rule is not to regard the mere letter of the statute, but to look to its spirit and purpose. It is not, therefore, absolutely essential to the disqualification of the witness that he be a party to the action.^" Xor can it be said that simply because a person ^ In a suit by the payee of a note against the executor of the surety, the principal maker of the note was a competent witness, under the statute in force prior to 1881, to prove that the surety had been discharged by giv- ing time; but, in such case, the payee was not a competent witness for him- self, unless required by the court to testify. Starret v. Burkhalter, 86 Ind. 439. In an action by an administrator against the payor of a note executed to the decedent, such payor is not a competent witness to testify to the genuineness of the decedent's signa- ture to a paper claimed to be genuine, to be used to show by comparison the genuineness of decedent's signature to a receipt of payment of said note. Merritt v. Straw, 6 Ind. App. 360, 32 N. E. 657. In a suit against the maker upon a note lawfully sold by the ad- ministrator of the deceased payee to the plaintiff, the defendant is not a competent witness in his own behalf. Reynolds v. Linard, 95 Ind. 48. In an action on a claim against a decedent's estate, wherein the claimant alleged that he, as surety for the decedent, was compelled to pay the amount due on a certain note, the note, which was introduced in evidence, purporting to have been executed as the joint and several obligation of all the makers, i. c, the decedent, the claimant and one A, A is incompetent as a witness to testify as to the question of prin- cipal and suretyship in such trans- action, A's interest in the controversy being adverse to that of the estate, and the mere fact that A, at the time of the trial, was insolvent, does not strip him of such interest. Thorn- burg v. Allman, 8 Ind. App. 531, 35 X. E. 1110. ^^ Cincinnati &c. R. Co. v. Cregor, 150 Ind. 625, 50 N. E. 760. ^ Lewis V. Buskirk, 14 Ind. App. 439, 42 N. E. 1118; Orndorf v. Jef- fries, 46 Ind. App. 254, 91 N. E. 608. ** Leach v. Dickerson, 14 Ind. App. 375, 42 N. E. 1031 ; Toner v. Wagner, 158 Ind. 447, 63 N. E. 859. In the first case the court say: "The incompe- § 414 COMPETENCY OF WITNESSES. 693 has an interest in the resuh of the suit that he is a party to the issue.*" The term "party" used in the statute means a party to the issue, and not merely a party to the record. A person is not incompetent as a witness simply because he may be a party to the record, but it must appear that he has some interest in the result of the suit in common with the party calling him. If he has such interest and he is called by a party adverse to the estate he is not competent as a witness.*^ The incompetency of a witness under this statute extends only to matters which occurred during the lifetime of the decedent. As to matters accruing after his death the parties to the action are competent to testify.*^ It being said in one case that : 'Tt is clear tcncy of the witness is not by reason of the express letter of the statute, but it arises from the efforts of the courts to administer the law with due regard to the rights of estates. In giv- ing effect to the spirit of the law the incompetency is created. We can see no good reason, therefore, why the incompetency should be extended any further than is requisite to give force and effect to the real spirit and pur- pose of the statute which is to protect estates from unjust claims proven by the evidence of those who are testify- ing in their own interest." *" Michigan Trust Co. v. Probasco, 29 Ind. App. 109, 63 N. E. 255 ; Bis- chof V. Mikels, 147 Ind. 115, 46 N. E. 348. It being said in one case that "in a suit by an administrator to col- lect assets belonging to the estate, the legatees or distributees are not neces- sary parties to the issue or the record. It is true a legatee may have an inter- est in the result of the suit, and that interest may be adverse to such estate, but that does not make him a neces- sary party to the issue. The same reasoning that would make him a necesary party would make each cred- itor of the estate a necessary party to the issue, and incompetent as a wit- ness. Parties to the issue must mean the parties between whom there is a controversy submitted to the court for trial; the parties who are litigating the particular controversy, and against one of whom, and in favor of the other, the court will render a judg- ment or decree." ■" Sloan v. Sloan, 21 Ind. App. 315, 52 N. E. 413. *^ Zimmerman v. Beatson, 39 Ind. App. 664, 79 N. E. 518, 80 N. E. 165. "If David Bowers were living, and the question of his possession of such property were being then litigated, as it now is, said appellees might testify exactly as they did in the trial, and, in the absence of other evidence, a finding that there was no such prop- erty might be made, but the decedent alive could also testify relative to oc- currences detailed by them, and his statement added thereto might make a much different question from that presented in his absence. The matters testified to occurred during the life- time of the decedent, and the neces- sary conclusion is that the statute ren- dered the witnesses incompetent." 694 INDIANA PROBATE LAW. § 4-5 from the language used that the legislature had in view suits where one of the parties only was an executor or administrator, and the matters involved occurred during the lifetime of the de- cedent whom the particular executor or administrator repre- sents."" If one estate is prosecuting a claim against another estate the rule of adverse interest does not apply. Both parties being dead, the reason for the rule is gone.** § 415. In case of joint interest. — Where the real, or sub- stantial contracting party on one side is dead, though others, who are only nominal parties, survive, the other party cannot testify." But where a contract is made by one with several parties jointly, each of whom being as deeply interested as the others, the death of one of them does not disqualify the plaintiff, in a suit against them, because the living co-defendants are competent to testify against him,*" yet if the contract, though it affect several was made by or with one in behalf of himself and the others, the death of the one acting for them renders the other party to the contract incompetent.*^ And surviving partners are not compe- tent witnesses for each other to prove the terms of a contract made by a deceased partner for their benefit.*^ It is held that a surviving partner is not a competent witness against the estate of a deceased partner to recover for goods sold, to prove the "Michigan Trust Co. v. Probasco, W. 47; Leach v. Dickerson, 14 Ind. 29 Ind. App. 109, 63 N. E. 255; Upton App. 375, 42 N. E. 1031. In an action V. Adams, 27 Ind. 432. against the estate of a deceased part- ** Sloan V. Sloan, 21 Ind. App. 315, ner for a debt due by a firm, the sur- 52 N. E. 413; Orndorf v. Jeflfries, 46 viving partner is an interested party Ind. App. 254, 91 N. E. 608. and cannot testify. Giesecke Boot &c. ^'Messimer v. McCray, 113 Mo. Co. v. Seevers, 85 Iowa 685, 52 N. W. 382, 21 S. W. 17. 555. And so, where a person deposits "Wiley V. Morse, 30 Mo. App. 266; money in the joint name of himself McGehee v. Jones, 41 Ga. 123. and another, under a stipulation that "Stanton v. Ryan, 41 Mo. 510; either, or the survivor, may draw the Dean v. Wamock, 98 Pa. St. 565; fund, the claim of such other person Harris v. Bank, 22 Fla. 501, 1 So. 140, after the owner's death is adverse to 1 Am. St. 201. the owner and the claimant is not **Hook V. Bixby, 13 Kan. 164; God- competent to prove a gift. Flanagan frey v. Templeton, 86 Tenn. 161, 6 S. v. Nash, 185 Pa. St. 41, 39 Atl. 818. § 4l6 COMPETENCY OF WITNESSES.' 695 partnership, its duration or time of dissolution, or to fix any lia- bility against the estate of the deceased partner, but he may testify to the purchase of the goods, and that the price remains unpaid.*® The statute is not directed against the proving of relevant and material matters which occurred during the lifetime of the dece- dent, but it renders a person of the class therein designated in- competent to testify as to such matters against the estate. The objection does not go to the evidence itself, but to the person, the incompetent witness.^" For this reason the rule of the statute is not applicable in a suit against a surviving partner and the sureties on a bond of the firm, no recovery being sought against the estate of the deceased partner.^^ If a note executed by a decedent and another person is filed as a claim against the estate of such decedent, the maker of the note who joined with the decedent in its execution is not compe- tent to prove that the decedent signed the note." § 416. As to admissions and declarations. — The admissions of a decedent against his own interest may be proven in actions against his estate, it being said that "where admissions are made by a party against his own interest, it is not material whether they were or were not a part of the res gestse, for self- disserving declarations are always competent against the party *• Leach v. Dickerson, 14 Ind. App. 685, 52 N. W. 555 ; Hurlbut v. Meeker, 375, 42 X. E. 1031. "If the purchase 104 111. 541 ; Hogeboom v. Gibbs, 88 was the individual act of the witness, Pa. St. 235; Cooper v. Wood, 1 Colo, and there was then no partnership, he App. 101, 27 Pac. 884; Hunter v. Her- was personally liable for the entire rick, Id Hun. (N. Y.) 272." debt. If, on the other hand, the de- "Gilbert v. Swain's Estate, 9 Ind. ceased was then a partner, a portion App. 88, Zd N. E. 374 ; Allen v. Jones, of the burden would be imposed upon 1 Ind. App. 63, 27 N. E. 116; Sullivan him, and thus practically transferred v. Sullivan, 6 Ind. App. 65, 32 N. E. from the shoulders of the witness; 1132. that the witness was as to all matters " Hines v. Consolidated Coal &c. relating to the existence of partner- Co., 29 Ind. App. 563, 64 N. E. 886. ship, adverse in interest to the estate, " Bowen v. O'Hair, 29 Ind. App. is, in our opinion, quite clear. Gie- 466, 64 N. E. €12. secke Boot &c.-Co. v. Seevers, 85 Iowa 696 INDIANA PROBATE LAW. § 416 by whom they were made, whether accompanying any act or not."" The admissions of an executor or administrator may also be shown. Such admissions are not conclusive, but like admissions made by parties to an action, they are competent. An executor or administrator may be said, in some sense, to step into the shoes of the deceased. He represents the deceased in respect to his personal estate and his admissions are competent evidence against the estate he represents. His adrnissions are also competent evi- dence when the estate is represented by his successor in the ad- ministration.^* As one writer puts it, "The executor or administrator is bound by the admissions of the deceased in regard to all property in the ownership of which he is in privity with the deceased, on the principle that when a party, by his admissions, has qualified his own right, and another succeeds to his claim as executor or administrator, he succeeds only to the right thus qualified at the time when his title commenced. And the executor or administra- tor may, by his own admissions, bind the estate which he repre- sents, but only after he has become fully clothed with the trtist."" The admissions made by a decedent while in possession of °^ Clouscr V. Ruckmon. 104 Iiul. 588, on the part of the deceased to the 4 X. E. 202; Slade v. Leonard, 75 Ind. plaintiff, while she was such executrix. 171; 1 Greenleaf Ev., § 189; 1 Best She died, and an administrator de Ev., § 500. bonis non was appointed. In a suit "Eckert v. Triplett, 48 Ind. 174, 17 by the plaintiff against the adminis- Am. Rep. 735; Faunce v. Gray, 21 trator de bonis non, the admissions of Pick. (j\Iass.) 243. "The estate is the executri.x were held competent, equally affected by the admission, The court said: "Such admissions, whether the subject-matter of it arise made in good faith while she repre- in a suit where the same executor or sented the estate, and had an interest administrator is a party, or in a suit in the matter, are evidence to charge where a successor in the administra- the estate. We see no reason against tion is a party. The direct authori- it, and the admission of the former ties upon this point are not numerous, executrix must, on principle, be re- Indeed, we are aware of only one garded as effectual to charge the es- American case exactly in point. That tate, as if made by the administrator is the case of Lashlee v. Jacobs, 9 de bonis non." Humph. (Tenn.) 718. There, an exec- " Croswell, Extrs. & Admrs., 547. utrix had admitted an indebtedness § 4^6 COMPETENCY OF WITNESSES. 697 property, as to the character in which he held such property, are competent evidence against his heirs or personal representatives.^*' A decedent's declarations as to an indebtedness owing by him are admissible against his estate and in favor of a claim filed on such debt." The rule being that a party's declarations are ad- missible against him or his representative, but cannot be shown by or in favor of either.^* But there is an exception to this rule it is well enough to note, that is when declarations, qualifying and giving character to an act proper to be given in evidence, accompany that act, such declarations are admissible, whether self-serving or not, because they are a part of the res gestae.^^ It is, however, not always easy to determine when declarations having reference to the act or transaction should be received as part of the res gestae, and courts have had much difficulty in their efforts to formulate general rules applicable to the subject. Our own Supreme Court has laid down the following, which perhaps is as good as any : "This much may, however, be safely said, that declarations which were the natural emanations or outgrowth of the act or occurrence in litigation, although not precisely concurrent in point of time, if they were yet voluntarily and spontaneously made so nearly con- temporaneous as to be in the presence of the transaction which they illustrate and explain, and were made under such circum- '"' Vanduyn v. Hepner, 45 Ind. 589. person, in an action brought against " Slade V. Leonard, 75 Ind. 171. him by the heir. 1 Greenl. Evidence, " 'The declarations of an intestate are § 189. So, in an action against heirs admissible against his administrator, for the recovery of real estate, when or any other claiming in his right.' 1 the statute of limitations is pleaded, it Greenl. Evidence, § 189; Wilcox v. is competent to prove the admissions Duncan, 3 Ind. 146; Bevins v. Cline's of the ancestor that he held the same Adm'r., 21 Ind. 37; Denman v. Mc- as tenant of the plaintiff, and not as Mahin, 37 Ind. 241. The admissions owner. Vanduyn v. Hepner, 45 Ind. of a former administrator, touching 589." the matter in controversy, are admis- '' Bristor v. Bristor, 82 Ind. 276; sible against the administrator de Wetzel v. Kellar, 12 Ind. App. 75, 39 bonis non. Eckert v. Triplett, 48 Ind. N. E. 895 ; Brown v. Kenyon, 108 Ind. 174, 17 Am. Rep. 735. The declara- 283, 9 N. E. 283. tions of an ancestor, that he held the ^ McConnell v. Hannah, 96 Ind. 102 : land as tenant of a third person, are Creighton v. Hoppis, 99 Ind. 369; admissible to prove the seizin of that Downs v. Lyman, 3 N. H. 486. 698 INDIANA PROBATE LAW. §416 Stances as necessarily to exclude the idea of design or delibera- tion, must, upon the clearest principle of justice, be admissible as a part of the act or transaction itself.""" And it was there- fore held that, in an action by an administrator for an injury causing death, the declarations of the decedent made within a few minutes after the injury was sustained, and while he yet remained in the presence of the cause of the injury, were admis- sible as a part of the res gestae." The correct rule, as laid down by the authorities, is: "The decedent's admissions and declarations are not competent in favor of the representative, unless some rule of evidence would admit them in favor of the decedent, if living, as, for instance, where they were part of the res gestae of an act properly in evi- dence.""' In an action by a claimant he is not a competent witness in his own behalf in rebuttal of admissions proved to have been made by him to the decedent."^ And in an action by an administrator de bonis non to recover the value of certain personal property sold by his intestate, proof by the defendant of admissions made by a former administrator of the estate that payment had been made to him by such defend- ant, was held to be competent evidence and properly admitted."* But where, on the trial of a claim against an estate, the claim- ant has proven statements of the deceased in his lifetime ac- "« Louisville &c. R. Co. v. Buck, 116 Ind. 566, 19 N. E. 453, 9 Am. St. 883, Ind. 566, 19 N. E. 453, 9 Am. St. 883, 2 L. R. A. 520n. 2 L. R. A. 520n ; Toledo &c. R. Co. v. " Abbott Trial Ev., 60 ; Doe v. Rea- Goddard, 25 Ind. 185 ; Commonwealth gan, 5 Blackf. (Ind.) 217, 33 Am. V. MTike, 3 Cush. (Mass.) 181, SO Dec. 466; Hamilton v. State, 36 Ind. Am. Dec. 727 ; Augusta Factory v. 280, 10 Am. Rep. 22n ; Howe v. Yopst, Barnes, 72 Ga. 217, 53 Am. Dec. 838; 20 Ind. 409; Ghormley v. Young, 71 Insurance Co. v. Mosley, 8 Wall. (U. Ind. 62; Baker v. Gausin, 76 Ind. 317; S.) 397. 19 L. ed. 437; People v. Simp- Kenney v. Phillipy, 91 Ind. 511. son, 48 Mich. 474, 12 N. W. 662; ''Bishop v. Welch, 35 Ind. 521; Kirby v. Commonwealth, 77 Va. 681, Williams v. Allen, 40 Ind. 295; Fro- 46 Am. Rep. 747 ; State v. Koran, 32 maji v. Rous, 83 Ind. 94. Minn. 394. " Eckert v. Triplett, 48 Ind. 174, 17 «^ Louisville &c. R. Co. v. Buck, 116 Am. Rep. 735; Lashlee v. Jacobs, 9 Humph. (Tenn.) 718. §417 COMPETENCY OF WITNESSES. 699 knowledging the debt in suit as his own, the administrator will not be permitted to prove contrary statements made by such decedent.''^ The parties may be called as to a transaction, and they may be impeached by proof of inconsistent statements, but such state- ments cannot be introduced in the form of admissions.*'*' § 417. Cases in which statute does not apply. — It does not prevent a plaintiff, in an action in replevin, brought against one who purchased property at an administrator's sale, to recover property sold, from testifying that such property was a gift to him from the decedent.*''^ In a suit by an administrator against a husband and wife to set aside an alleged fraudulent conveyance, the defendants are competent witnesses to show that the land was held by the hus- band in trust for his wife by reason of having purchased it with her money, and having taken the title in his own name without her consent, such transaction not being the subject-matter of the suit.**' In action on a claim against an estate, based upon a note which is alleged to be lost, after evidence to prove the existence of the note, and that it belonged to the claimant, such claimant is a com- petent witness to show the loss of the note.*'^ A conversation between a claimant, in a suit upon the claim against an estate, and one of the heirs, although such conver- «» Foster v. Honan, 22 Ind. App. 252, were made by the mortgagor, and a 53 N E 667 receipt signed by him acknowledgmg -Zimmerman v. Beatson, 39 Ind. the receipt of three hundred and fifty App 664 79 N E. 518. 80 N. E. 165. dollars, January 11, 1866, havmg been -Durham v. Shannon, 116 Ind. 403, admitted in evidence, the mortgagee 19 N E 190 9 Am. St. 860. was not competent, under acts 1867, p. -Taylor v. Duesterberg, 109 Ind. 225, § 2, to testify that the receipt was 165 9 N E 907 given for two payments, one Decem- -Miiam V. Milam, 60 Ind. 58. On ber 26, 1865, for fifty dollars and the the trial of an action against the heirs other January 6, 1866 for three hun- of an intestate, to foreclose a mort- dred dollars, indorsed on_ the mort- gage given by him to secure a note, gage by the intestate and given m evi- it appearing from the evidence that dence by the plaintiff. Abshire v. the note was lost, and that the indorse- Williams, Id Ind. 97. ments of payments on the mortgage 700 INDIANA PROBATE LAW. § 41/ sation took place in the presence of the decedent, is admissible.^" It not being, within the meaning- of the statnte, a matter occur- ring in the lifetime of the decedent. In a suit upon a contract with the executor or administrator, the statute does not apply, and either party is a competent wit- ness." But where the administrator sues upon a contract made with his decedent the defendant is not a competent witness.'" And under a fonner statute neither was the executor or admin- istrator." But now he is not disqualified by the statute. Where the estate of a decedent is found to be of less than five hundred dollars in value, and is given to the widow under the statute, in a suit brought by her upon a note payable to the decedent, the defendant is not incompetent to testify in his own behalf.'* Where exceptions have been filed to the accounts of an ad- ministrator by heirs, and no judgment can be rendered on such exceptions either for or against the estate, and the assets of the estate will neither be increased or diminished as a result of such suit, the administrator is a competent witness in his own behalf;'^ but where the result of a judgment on such exceptions would be otherwise such administrator would not be a competent witness.'^® An executor or administrator under the old statute was not '* Denny v. Denny, 123 Ind. 240, 23 " Hanlon v. Doherty, 109 Ind. 2>7, 9 N. E. 519. X. E. 782. •'Voiles V. Voiles, 51 Ind. 385. •"• Thorn v. Wilson, 24 Ind. 323. In Where, in an action against A, the a suit upon the relation of a county principal, on a promissory note, and auditor to foreclose a school fund B, a surety, and the estate of C, an- mortgage executed during his term of other surety, the plaintiff was per- office, the relator is not a party in in- mitted to testify generally in her own terest within the meaning of the stat- behalf and against all the defendants, ute prohibiting parties from testifying and the court refused to instruct the as witnesses where heirs or adminis- jury to disregard the plaintiff's testi- trators are parties. Works v. State, mony as affecting the decedent's es- 120 Ind. 119, 22 N. E. 127. tate, such action constituted reversi- '* Walker v. Clifford, 21 Ind. 123. ble error as to the estate. Eppert v. " Hamlyn v. Nesbit, 37 Ind. 284. Hall. 133 Ind. 417, 31 X. E. 74; 32 N. '"Goodwin v. Goodwin, 48 Ind. 584. E. 713. §4^7 COMPETENCY OF WITNESSES. 70I a competent witness in an action on a claim against the estate he represents, for board and services rendered the decedent in his lifetime." The mother is a competent witness in a prosecution for bas- tardy against the administrator of the reputed father of her child." Where an action has been brought by the administrator of a deceased partner against the surviving partner for a settlement of the partnership accounts, the sun'iving partner is not a compe- tent witness. "^ Where no objection is made to an incompetent witness testi- fying in a case, and no motion is made to strike out his testimony, the objection to it will be considered waived.^" Where the widow sues the administrator of her husband's estate for her distributive share thereof she is a competent wit- ness. ^^ The widow of a decedent is a competent witness to testify to conversations and statements made by her husband to others in her presence, relating to transactions between her husband and others ; but she is not a competent witness to testify as to state- ments made to her by her husband.*" In a proceeding to remove an administrator for allowing and paying a claim, the claimant is a competent witness upon the question of the validity of the claim. ®^ The widow of a decedent is not barred from testifying as to declarations made by her to the administrator of her husband's estate.** The statute does not affect the competency of heirs or legatees " Ginn v. Collins, 43 Ind. 271. her share of the fund which remains " State V. Han, 23 Ind. 539. in his hands for distribution, the ™ Skillen v. Jones, 44 Ind. 136. widow is a competent witness. Sher- ^ Denbo v. Wright, 53 Ind. 226. wood v. Thomasson, 124 Ind. 541, 24 " Shaffer v. Richardson, 27 Ind. 122. N. E. 334. *' Denbo v. Wright, 53 Ind. 226; « Scott v. Smith, 171 Ind. 453, 85 N. Mercer v. Patterson, 41 Ind. 440; E. 774. Griffin v. Smith, 45 Ind. 366. In a suit " Featherngill v. Dougherty, 44 Ind. by a widow against the administrator App. 452, 89 X. E. 521. of her deceased husband to recover 702 INDIANA PROBATE LAW. § 418 to testify where the coiuroversy is between two estates as to the ownership of certain assets.®" Nor is an administrator barred from testifying as to where personal property of his decedent was found.*** The reason of the exchision under this statute Iving- in the danger of false testimony from witnesses biased by their interest, the rule is inapplicable if the interest does not exist. Hence it is held that to disqualify a party from testifying there must be a conflict of interest involved in the issue on trial, the effect of the evidence being to enlarge or diminish the rights of the estate. Indirect consequences to the witness do not constitute such an interest as will disqualify him. An interest in the question is not enough ; it must be an interest in the event." § 418. Competency in contest of wills. — Heirs and devisees are not prohibited by this statute from testifying in a suit to set aside a will as to the mental capacity of the testator, although his executor is a party to the action, and although the examina- tion is as to matters that occurred prior to the death of the testator. In Lamb v. Lamb. 105 Ind. 456, the court says: "We have given the question much consideration, and our con- clusion is that the statute referred to does not prohibit parties from testifying in such a case as this, and upon such a subject as the mental capacity of the testator. The question of the sound- ness or unsoundness of mind is fully open to investigation by both parties, and it is not a question upon which one party can speak of matters of which only he and the dead had knowledge. * * * The purpose of the statute was to prevent undue ad- vantage as against those whose interests would be unjustly prejudiced by permitting parties to testify as to matters which they assume were only known to them and the deceased, or as to " Michigan Trust Co. v. Probasco, Nearpass v. Oilman, 104 N. Y. 506, 10 29 Tnd. App. 109, 63 N. E. 255. X. E. 894; Albany County Sav. Bank ■* Hartzell v. Hartzell, 37 Ind. App. v. McCarty, 149 N. Y. 71, 43 N. E. 481. 76 N. E. 439. 427; Adams v. Board of Trustees, 37 "" Hobart v. Hobart, 62 N. Y. 80 ; Fla. 266, 20 So. 266. Hill V. Hilton, 80 Ala. 528, 1 So. 340 ; §419 COMPETENCY OF WITNESSES. 703 matters which, from their nature, could only have been known to them and the dead. * * * There is nothing in the spirit of the statute, and certainly nothing in the letter, which excludes parties from testifying respecting matters open to the observation of all the friends and acquaintances of the deceased. Such a matter is the mental capacity of the testator whose will is con- tested."^' A physician who is present in a professional capacity at the time a testator makes his will is disqualified from testifying as to the mental capacity of such testator. This on the ground, however, that such knowledge as he may have acquired is pro- fessional and confidential. For the same reason the evidence of the attorney who drew the will should be excluded.^^ The doctrine in Lamb v. Lamb is, however, in the nature of an exception to the rule, and in will contest cases parties to the issue are disqualified to testify as to matters which occurred in the lifetime of the testator which were not open to the observa- tion of all the friends and acquaintances of the deceased. ^° § 419. When heirs or devisees are parties. — In all suits by or against heirs or devisees, founded on a contract with or a demand against the ancestor, to obtain title to or possession of property, real or personal, of or in right of such ancestor, or to affect the same in any manner, neither party to such suit shall be a competent witness as to any matter which occurred prior to the death of the ancestor.^^ " Staser v. Hogan, 120 Ind. 207, 21 wherein one of the defendants filed a N. E. 911, 22 N. E. 990. cross-petition claiming the exclusive ^Gnrley v. Park, 135 Ind. 440, 35 ownership of a part of the land, by N. E. 279. virtue of a grant from an ancestor, »° I^IcDonald v. McDonald, 142 Ind. he was entitled to call, as a witness to 55. 41 N. E. 336; Belledin v. Gooley, the execution of the grant, his co-de- 157 Ind. 49, 60 N. E. 706. fendant to the original petition, such " Burns' R. S. 1908, § 522 ; Slayback co-defendant being, as to the cross- V. Witt, 151 Ind. 376, 50 N. E. 389. petition, an opposite party. Nye v. This statute applies only to the cases Lowry, 82 Ind. 316; Cupp v. Ayers, 89 therein specified. Cross v. Herr, 96 Ind. 60. In a suit for the partition of Ind. 96. In an action for partition be- real estate of which the ancestor died tween heirs of a common ancestor, seized, an heir, who is a party to the 704 INDIANA PROBATE LAW. § 4^9 This statute embodies the classes who fall within another exception to the general rule as to the competency of parties as witnesses. The intention of this statute is, in suits by heirs or devisees, to exclude the testimony of the parties to the action as to any matter which occurred prior to the death of the an- cestor, so as to prevent the living from testifying against the rep- resentatives of the dead. It the plaintiff sues as heir, on a con- tract with his ancestor, then the parties are excluded as witnesses by the letter of the section; but if the suit is by the heir, as such, on a demand, not against, but in favor of, the ancestor, not aris- ing on contract, then it depends upon the construction to be given to the other parts of the section as to whether the parties are competent witnesses for themselves or not."- In an action by or against heirs untler the above statute, the death of the ancestor must, in some legal way, be made to appear before an objection to the competency of a witness to testify under this statute can be sustained."' And the word heirs, as used in this statute, is intended to include all persons who take the estate of the decedent under the law, or by virtue of a will."* Under this statute one element which creates the right of action is the fact that the decedent held title to the property in- volved, at the time of his death; and the widow under proper circumstances must be regarded as an heir."^ suit, is not a competent witness to pctcnt to testify to the statements of prove declarations of the ancestor at her husband concerning advancements the time of making certain convey- made to one of the heirs, if no objec- ances to his children, in order to show tion is made that such statements are that the conveyances were gifts, and confidential and for that reason in- not advancements, as the law pre- competent. Advancements made by sumes. Wolfe v. Kable, 107 Ind. 565, her husband in no way affect her right 8 N. E. 559. to one-third of his real estate, and she ^ Malady v. IMcEnary, 30 Ind. 273 ; has no interest in the controversy in Larch v. Goodacre, 126 Ind. 224, 26 N, relation to such advancements. Scott E. 49. V. Harris, 127 Ind. 520, 27 N. E. 150. °* Hodgson v. Jeffries, 52 Ind. 334. .\ widow is a competent witness in ^* Larch v. Goodacre, 126 Ind. 224, favor of her husband's estate. Orn- 26 N. E. 49; Peacock v. Albin, 39 Ind. dorf v. Jeffries, 46 Ind. App. 254, 91 25. In an action for partition by the N. E. 608. heirs of a land-owner, his widow, "' Glass v. Davis, 118 Ind. 593, 21 X. though a party to the record, is com- E. 319. In an action by a creditor of 419 COMPETENCY OF WITNESSES. 705 A sui'viving wife, asserting a claim to the lands of her deceased husband, and against children whom he has made his devisees, is incompetent to testify as a witness in such action.®** The word "heirs" as used in this statute includes all persons who take any portion of the decedent's estate by descent, or who would so take, if they did not take by virtue of a will.'*' Evidence, which under this statute, is incompetent, cannot be introduced by indirection. What cannot be done directly can- not be accomplished indirectly. Thus a party to a suit, who is himself not competent to testify, will not be permitted to rehearse his version of an alleged transaction with the decedent, to some third person, and then, by calling such third person to testify, get the conversation before the jury. As is said, "if he could, then all any claimant need do is to pour into the ear of some one his unsworn account of a transaction, and thus make good his claim."®^ Under this statute neither party is a competent witness as to anv matter which occurred prior to the death of the ancestor.^" a decedent to compel the widow to ac- count for the value of the personal property of such decedent taken and converted by her after his death, and to compel the application of the pro- ceeds to the payment of the plaintiff's debt, the widow is an "heir" and the plaintiff is not a competent witness to testify as to any matter which occurred prior to the death of the ancestor. Allegations in the complaint making the widow liable as an administratrix de son tort did not change the action so as to make the plaintiff competent to testify as a witness. Larch v. Goodacre, 126 Ind. 224, 26 N. E. 49. In a suit to recover lands, the plain- tiffs were the widow and heirs of H., claiming by descent from him, and that he took title by conveyance from F. The defendant claimed by virtue of a prior contract of purchase from F. Held, that the defendant was a competent witness in her own behalf. Harding v. Elzey, 88 Ind. 321. ■^Wiseman v. Wiseman, 72) Ind. 112, 38 Am. Rep. 115. "'' Peacock v. Albin, 39 Ind. 25 ; Cupp v. Ayers, 89 Ind. 60. On the trial of an action against heirs founded on a contract with their ancestor, to obtain title to real property, a party incom- petent to testify, cannot call from a witness such party's statements of facts made to the witness before and during examination. Cottrell v. Cot- trell, 81 Ind. 87. "" Cottrell v. Cottrell, 81 Ind. 87. "Williams v. Riley, 88 Ind. 290; Scherer v. Ingerman, 110 Ind. 428, 11 N. E. 8, 12 N. E. 304. The plaintiff in an ejectment suit had contracted in writing for the sale of the land to the defendant, and upon a decree of fore- closure of his lien as vendor had pur- chased the land and had obtained the 45— Pro. Law. 706 INDIANA PROBATE LAW. § 419 And if either a husband or wife is incompetent to testify the evidence of the other is inadmissible.^ In an action for partition of real estate a defendant who claims an interest in tlie land from a common ancestor with the plaintiff is an incompetent witness as to matters against the ancestor before his death." In a suit to foreclose a school fund mortgage against a dece- dent's real estate, the relator has no such interest in the result of the suit as will render him incompetent to testify.^ Where a decedent had. in an application for a benefit certifi- cate in a fraternal and beneficial order, stated that he wanted the benefit at his death paid to his "legal heirs," such heirs were not incompetent in a suit on the certificate, to testify as to the condi- tion of the decedent's liealth, or mental capacity.' A devisee under a will is not a competent witness concerning matters connected with the execution of the will; and when the husband or wife of a devisee is a witness to such will such hus- band or wife is not a competent witness to prove the due exe- cution of the will.^ sheriff's deed; and the children of the prior to a husband's death, in an ac- principal defendant, having been ad- tion concerning the title to land de- niitted to defend, set up that the con- rived by the widow from her deceased tract of sale, though made in the name husband. Cuthrell v. Cuthrell, 101 of their father, was for the benefit of Ind. 375. In an action between a their mother, who was not made a brother and sister relative to the title party to the foreclosure, and that as to land which both claim through their her heirs they had her rights. Held, deceased father, a brother of the that there was no error in permitting claimants and his wife, who are par- the plaintiff to testify concerning the ties to the action but not to the issues, possession of the premises by the prin- and disclaim any interest in the sub- cipal defendant before the commence- ject-matter of the controversy, are ment of the action. Bitting v. Ten competent witnesses. Martin v. Mar- Eyck, 85 Ind. 357. tin. 118 Ind. 227, 20 X. E. 763. ' Scherer v. Ingerman, 110 Ind. 428, HVorks v. State, 120 Ind. 119, 22 N. 11 N. E. 8, 12 N. E. 304; LjTiam v. E. 127. Buckner, 60 Ind. 402 ; Creighton v. ■* Supreme Lodge, K. P. v. Andrews, Hoppis, 99 Ind. 369. 31 Ind. App. 422, 67 N. E. 1009, -Baker v. Baker, 69 Ind. 399; Wise- Lamb v. Lamb, 105 Ind. 456, 5 X. E. man v. Wiseman, 7?) Ind. 112, 38 Am. 171. Rep. 115. A party is not a competent ° Belledin v. Gooley, 157 Ind. 49, 60 witness as to matters which occurred X. E. 706. § 4-0 COMPETENCY OF WITNESSES. 707 § 420. The statutes construed together. — The first two sections of the statute must be construed together so that effect can be given to each. They were not intended to apply to the same classes of cases. The first relates to cases in which ex- ecutors and administrators are parties, and the second to those in which heirs or devisees are parties. The subject-matters of the suits under these sections may be different, but their con- struction, as to the competency of witnesses, must be governed by the same rule." The court says, in one case: "The first ex- cludes the living from testifying against the dead in all actions where an executor or administrator is a party, where a judgment may be rendered for or against an estate. The object of the actions contemplated by this section is to recover a judgment for money. They consist mainly of claims filed against an estate, and actions brought by executors and administrators * * * on accounts and notes that were owing to the decedent in his lifetime. It also embraces actions upon contracts, agreements, and the like, where a judgment in money is sought. It is very seldom that an executor or administrator is either a proper or necessar}^ party to an action, the object of which is to obtain title to, or possession of, lands or personal property; but where they are such parties the other parties to the action are excluded from testifying. The second section embraces actions brought b}- or against heirs, founded on a contract with, or a demand against, an ancestor, the object of which is to obtain title to or possession of land or specific articles of property, or to affect the same in any way. This section was not intended to apply to actions, the object of which was to recover a judgment for money. It embraces actions to obtain the possession of land ; for specific performance of contract with the ancestor in ref- erence to land ; to quiet the title to lands, or to remove a cloud from such title; and actions to obtain the possession or try the title to articles of personal property. * * * This construction gives full force and eft'ect to each section, and will in our judg- " Cravens v. Kitts, 64 Ind. 581. 708 INDIANA PROBATE LAW. § 421 ment, exclude the living from testifying against the dead in all cases contemplated by the legislature."' § 421. As to testimony of decedent's agent. — Another ex- ception to the general rule is found in the following statute, a portion of which is quoted : "When, in any case, an agent of the decedent shall testify on behalf of an executor, administrator or heirs, concerning any transaction as having been had by him, as such agent, with a party to the suit, his assignor or grantor, and in the absence of the decedent; or if any witness shall, on behalf of the executor, administrator or heirs, testify to any conversation or admission of a party to the suit, his assignor or grantor, as having been had or made in the absence of the de- ceased; then the party against whom such evidence is adduced, his assignor or grantor, shall be competent to testify concerning the same matter. No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died shall be a competent witness in any suit upon or involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such con- tract, against the legal representatives or heirs of the decedent, unless he shall be called by such heirs or legal representatives. And in such case he shall be a competent witness only as to matters concerning which he is interrogated by such heirs or representatives."* One who is employed for a particular service, as a scrivener to write a will, is not an agent within the meaning of this statute. Ordinarily, an agent is one who acts in the place of, and on be- ^ Peacock v. Albin, 39 Ind. 25. the conversation in question. Martin * Burns' R. S. 1908, § 523. Where, v. Martin, 118 Ind. 227, 20 N. E. 763. in an action between heirs, a witness In an action by an administrator for is called by one party, who testifies as the recovery of money had and re- to a conversation relating to the mat- ceived, it was proper for the court to ters in controversy, had by him with refuse to permit the defendant to tes- the opposite party, prior to the dece- tify to the conversations he had with dent's death and in his absence, such the deceased at the time he received opposite party becomes a competent the money in dispute. Copeland v. witness, in response to such testimony, Koontz, 125 Ind. 126, 25 N. E. 174. but his right to testify is limited to 421 COMPETENCY OF WITNESSES. 709 half of his principal, and it is to agents of this class the statute applies. ** To so much of this statute as regards testimony as to "any conversation or admission," the spirit as well as the letter of the statute limits the living party, in his testimony, to the con- versation or admission about which the witness called against him may testify.^" An attorney, who is present with his client at a settlement only for the purpose of advising him in reference to the nego- 'Kenney v. Phillipy, 91 Ind. 511; Welsh V. Brown, 8 Ind. App. 421, 35 N. E. 921. In an action on a claim against a decedent's estate, involving a note bearing eight per cent, interest alleged to have evolved out of a land transaction between the claimant and the decedent, the attorney for the de- cedent was permitted to testify to the facts in relation to the land transac- tion between the decedent and the claimant's husband, with the statement by the court to the jury that plaintiff was not bound by anything that was said or done in her absence, but that the circumstances connected with the transaction were proper to go to the jur}- with the other evidence in the case. Held, that such testimony, as a history of the transaction, subject to the limitations stated by the court, was proper to go to the jury, in order to make the evidence off^ered in rela- tion to the transaction more intelligi- ble. Hedge v. Talbott, 8 Ind. App. 597, 36 N. E. 437. "Martin v. Martin, 118 Ind. 227, 20 N. E. 763. Where the defendant in such action admitted the receipt of the money from the deceased, but averred that the same was a gift ex- cept such sum as might be necessary to pay the decedent's funeral ex- penses, it was competent to read in evidence, as tending to refute the de- fendant's said claim, a deed from the decedent and her husband to the hus- band's children, which secured by res- ervation a support from the grantors during the term of the natural life of each, and at their death a decent burial. Copeland v. Koontz, 125 Ind. 126, 25 N. E. 174. In an action by an administrator to set aside a transfer of a note and mortgage by a dece- dent, the note and mortgage having been transferred by the decedent to the son, a minor, of one of the de- fendants, who, as his guardian, held both the note and mortgage for his benefit, the wife of such guardian is not a competent witness for her son, the assignee, under § 5231, Burns' R. S. 1908, providing that: "Where the husband or wife is a party, and not a competent witness in his or her own behalf, the other shall also be ex- cluded." Walker v. Steele, 121 Ind. 436, 22 N. E. 142, 23 N. E. 271. Where a witness on behalf of the estate testi- fies to a conversation between him and the claimant in the presence of the decedent, such evidence is under the statute conclusive as to the pres- ence of the deceased, and that fact cannot be rebutted. Kibler v. Potter, 11 Ind. App. 604, 39 N. E. 525. 710 INDIANA PROBATE LAW. § 4-1 tiations, is not such an agent as will preclude him from testifying as to the transaction." In an action by him on an insurance contract made by their ancestor, the agent of the company taking the insurance is not a competent witness as to matters occurring between him and the ancestor." One. wlio in the presence of a party, signs such party's name to a note by his request is not, by that act, made the agent of the party whose name he so signs, and is not incompetent to testify as to such transaction in an action on the note after the death of the party." This statute has been construed to mean that the agent of the person still living shall not be a competent witness on behalf of his principal to testify against the estate of the other party to the contract except at the instance of the legal representative or heirs of the deceased. ^^ The exclusion of the other party extends only to transactions "Piper V. Fosher, 121 Ind. 407, 23 been the agent of the opposite party, N. E. 269. rather than the agent of the deceased "Insurance Co. v. Brien, 111 Ind. person. The object of the statute 281, 12 N. E. 315. doubtless was to prevent the living " Tremain v. Severin, 16 Ind. App. party from having an advantage over 447, 45 N. E. 620. "The fact that the dead person or his property. Swartz wrote the decedent's name at Death has sealed the lips of the de- his request and in his presence, did not ceased, and the law aims to close the make him such an agent as the statute lips of the living party. If the agent contemplates. He was at most but of the living party were allowed to an amanuensis — mere instrument by testify against the estate of the dece- which the decedent accomplished the dent as to matters occurring during purpose of signing the note — a mere the life of the deceased, the purpose instrument, like a stamp, or a pen. If of the statute would in many cases be the signature had been placed to the defeated. Was it not also the purpose note by the witness at a time when of the statute to prevent the agent of appellant's decedent was not present, the living party from testifying as to there might be some reason for the matters that occurred in the deced- contention that Swartz was an agent, ent's lifetime?" Moreover, it is, to say the least, a " Foster v. Honan, 22 Ind. App. 252, question of doubt whether the agent 53 N. E. 667 ; Geisendorfif v. Cobb. — spoken of in the statute must not have Ind. App. — , 94 N. E. 236. 8 422 COMPETENCY OF WITNESSES. 7I I with the deceased agent, as agent, not to facts outside of and independent of such agency." § 422. When assignor or grantor excluded.— The statute provides that, in all cases where executors, administrators, heirs or devisees are parties, and one of the parties to the suit shall be incompetent, as hereinbefore provided, to testify against them, then the assignor or grantor of a party making such assignment or grant voluntarily shall be deemed a party adverse to the ex- ecutor, administrator, heir or devisee, as the case may be.^*^ The assignor of a claim against the estate of a decedent is ex- cluded by the spirit and intent of these statutes from testifying in an action on such claim brought by the assignee. Where an estate has been finally settled, leaving uncollected claims due the estate in the hands of the executor or adminis- trator, and such claims have been assigned, under the statute, by the executor or administrator to any heir or legatee, such as- signment makes no change in the competency of the parties as witnesses in an action upon such claim ; the person from whom the claim is due cannot testify in an action thereon for its col- lection brought by the assignee of any such claim. Where such an assignment is made, the executor or administrator ceases to represent the estate, but the representation is devolved by law upon the heir or legatee, who then becomes subrogated to the rights of such executor or administrator. The assignment can- not transfer a power different in nature from that which was possessed by the assignor. An executor or administrator who so assigns a claim due an estate assumes none of the liabilities of an ordinaiy assignor. The assignment is by operation of law, but it does not restore the competency of persons against whom the claims are assigned. The intention of the law is to protect the estates of deceased persons, no matter by whom rep- resented.^' The court says upon this subject : "The assignment of an ac- " First Xat. Bank v. Payne, 111 Mo. Fitzgerald v. Cox, 39 Ind. 84; Mod- 291, 20 S. W. 41, 33 Am. St. 520. lin v. Northwestern Tpk. Co., 48 Ind. "Burns' R. S. 1908, § 526. 492; Carter v. Zenblin, 68 Ind. 436. "Peacock v. Albin, 39 Ind. 25; 712 INDIANA PROBATE LAW. § 422 count under the code does not vest the legal title in the assignee. It is a mere equitable transfer, which does not authorize the as- signee to maintain an action in his own name without making the assignor a party to answer to his assignment or interest in the claim. The assignor does not warrant the solvency of the claim, nor is he responsible to the assignee if he fails to collect the ac- count. The account of itself proves nothing. The making out of an account against the estate of a decedent, its assignment, and the filing of the same create no legal liability. The correct- ness of the claim must be proved by competent and sufficient evi- dence before the court can allow the same. When the assignee sues upon an assigned account or upon a note equitably assigned, and makes the assignor a party to answer as to his interest there- in, the assignor and the assignee are not adverse parties. Their interests are identical."^'' And when a person has assigned his interest in a matter grow- ing out of a contract with the decedent, such person is not a com- petent witness in favor of the assignee.^" In an action by an ad- ministrator on a note made payable to the decedent, the son of the deceased was held incompetent to testify that the decedent had transferred the note to him and he had assigned it to the de- fendant.-" Under the foregoing exceptions noted, the circumstances of the case may often fender the executor or administrator an incom- petent witness. But in all actions by an executor or administrator on contracts assigned to the decedent, when the assignor is alive and a competent witness in the cause, the executor or adminis- trator and the defendant or defendants shall be competent wit- nesses as to all matters which occurred between the assignor and the defendant or defendants prior to notice of such assignment.^^ The wife of the assignor of a claim against a decedent's estate who is herself assignee of a part of such claim cannot testify in "Ketcham v. Hill, 42 Ind. 64; Gift 165. 9 N. E. 907; Reynolds v. Linard, V. Shockley, 11 Ind. 297; Martin v. 95 Ind. 48. Asher. 25 Ind. 237; Cox v. Davis, ""Toner v. Wagner, 158 Ind. 447, 16 Ind. 378. 6Z N. E. 859. " Taylor v. Duesterberg, 109 Ind. -^ Burns' R. S. 1908, § 527. § 423 COMPETENCY OF WITNESSES. 713 favor of the assignee of the remaining part of the claim." It is not the policy of the law to permit a party to a contract, on find- ing that he has not legal evidence, to sustain an action to make himself a competent witness by a transfer of his cause of action to another. And it can make no difference whether the transfer was made in good faith for a valuable consideration or not." Nor can a party deprive his adversary of the right to make him a witness by an assignment of his claim although he cannot by such assignment make himself competent to testify for his assignee.^* § 423. When executors and administrators are defendants. — When, in any case, a person shall be charged with unlawfully taking or detaining personal property, or having done damage thereto, and such person, by his pleading, shall defend on the ground that he is executor, administrator, guardian or heir, and as such has taken or detains the property, or has done the acts charged, then no person shall be competent to testify who would not be competent if the person so defending were the complain- ant; but when the person complaining cannot testify, then the party so defending shall also be excluded.-^ Where a co-plaintiff in an action of replevin dies, and his ad- ministrator is substituted in the action, the defendant is not a competent witness in his own behalf, as to a conversation be- tween himself and the decedent in regard to the title to the prop- erty in controversy.'" § 424. Adverse party required to testify. — The exceptions noted in the foregoing sections do not absolutely disqualify the classes of witnesses therein mentioned. They are simply rendered incompetent as a measure of policy. And in all the cases named in the statute the incompetency may be waived. The provision in § 526, Burns' R. S. 1908, authorizes the examination of the ad- verse party at the instigation of the other party to the suit, or at ** Payne v. Goldbach, 14 Ind. App. '' Roberts v. Briscoe, 44 Ohio St- 100, 42 N. E. 642. 596, 10 N. E. 61. "'Buck V. Haynes, 75 Mich. 397. -=^ Burns' R. S. 1908, § 523. 42 N. W. 949; Louis v. Easton, 50 =" Charles v. Malott, 65 Ind. 184. Ala. 470. 714 INDIANA PROBATE LAW. § 424 the discretion of the court. It reads: "That in all cases referred to (in the foregoing statute, above set out) any party to such suit shall have the right to call and examine any party adverse to him as a witness, or the court may, in its discretion, require any party to a suit, or other person, to testify, and any abuse of such discre- tion shall be reviewable on appeal." The word "require," as used in this proviso, should not be used in the sense of allowing a will- ing witness to testify. The idea conveyed is rather that of com- pelling an unwilling witness to give his evidence. The require- ment is at the discretion of the court trying the cause and not upon the party's own application.-^ The adverse party may call him as a witness, and when so called he may testify in his own behalf. -'' The executor or administrator under a former statute was not a competent witness unless called by the adverse party or required by the court to testify."'' But the statute does not now disqualify him. If not required to testify by the opposite party, the witness must be so required by the court to become competent, otherwise he cannot be allowed to testify if proper objection be made. It is only by objection made and sustained, or overruled, that the question of admissibility of evidence can be raised. When such objection is overruled, by such ruling the court holds that the law permits the witness to testify without his being required by the " Williams v. Allen, 49 Ind. 295. able on appeal. Willetts v. Schuyler, Where a claim is filed by a wife 3 Ind. App. 118, 29 N. E. 273; Tal- against her deceased husband's es- bott v. Barber, 11 Ind. App. 1, 38 N. tate, it is competent for the court to E. 487, 54 Am. St. 491. call the wife as a witness, and permit ^ Bartlett v. Burden, 11 Ind. App. her to testify to matters which oc- 419, 39 N. E. 175 ; Talbott v. Barber, curred during the lifetime of the de- 11 Ind. App. 1 ; 38 N. E. 487, 54 Am. cedent. She would have been in- St. 491 ; Malady v. IMcEnary, 30 Ind. competent, except for the action of ZIZ. the court requiring her to testif}-. -■' Thom v. Wilson, 24 Ind. 323. It is within the power of courts, in The action of the court in overruling the exercise of their discretion, to an objection to the competency of a require witnesses to testify who are witness is not eqviivalent to a re- rendered incompetent by the provi- quirement by the court that the wit- sions of the above section, and there ness shall testif3^ Smith v. Smith, is no legislative limit upon such dis- 76 Ind. 236, overruled. Cupp v. Ay- cretion except that it shall be review- ers, 89 Ind. 60; Nelson v. Master- § 424 COMPETENCY OF WITNESSES. 715 court or the opposite party.^" The adverse party has it in his power to make such incompetent witness competent. The objec- tion does not go to the evidence itself but to the person. ^^ The statute recognizes that it may sometimes be to the advan- tage of the estate, and conducive to the ends of justice, to permit an adverse party, or incompetent witness, to testify; and to this end it has given to the personal representative of the deceased the right to exercise a discretion in making an incompetent wit- ness competent. If he exercises such right he accredits such wit- ness with competency, and he may be used by either party to the suit.^- A witness incompetent lo testify by reason of the foregoing statutes, called by the adverse party to testify as to some particu- lar fact is, by such act, rendered competent for all the purposes of the case, and may then testify fully for himself. For if a party puts an incompetent witness on the stand by exercise of the power given him, over the witness, he accredits such witness with com- petency and renders him entirely competent in the cause. In one case the court saying : "Having been called as a witness by the adverse parties and examined by them as a witness upon certain matters pertinent to some of the issues in the case, we think that he was thereby rendered competent for all purposes. "^^ ton, 2 Ind. App. 524, 28 N. E. 731. 210, 91 Am. Dec. 148; Choteau v. On trial of an action by an adminis- Thompson, 3 Ohio St. 424. In an trator, the defendant, was not compe- action against a decedent's estate, if tent to testify in denial of admis- the defendant calls the plaintiff as a sions proved against him and shown witness in his behalf, he waives the to have been made since the intes- right to object if he testifies in his tate's death, unless required to tes- own behalf. Bartlett v. Burden, 11 tify. Froman v. Rous, 83 Ind. 94. Ind. App. 419, 39 N. E. 175. '"Cupp V. Ayers, 89 Ind. 60, over- ^Warren v. Adams, 19 Col. 515, ruling, on this point Smith v. Smith, 36 Pac. 604; Young v. Montgomery, 76 Ind. 236. 161 Ind. 68, 67 N. E. 684; Gilbert v. ^Gilbert v. Swain, 9 Ind. App. 88, Swain, 9 Ind. App. 88, 36 N. E. 374; 36 N. E. 374; Owings v. Jones, 151 Bartlett v. Burden, 11 Ind. App. 419, Ind. 30, 51 N. E. 82. 39 X. E. 175. In Fulton Bank '=i\Ialady v. McEnary, 30 Ind. 273; v. Stafford, 2 Wend. (N. Y.) 483, Gilbert v. Swain, 9 Ind. App. 88, 36 485, one Mather was called as a N. E. 374; Wrape v. Hampson, 78 witness on behalf of the plain- Ind. 499; Seip v. Storch, 52 Pa. St. tiff, and he testified to the sig- 7i6 INDIANA PROBATE LAW § 424 It is within the power of courts, in the exercise of their discre- tion, to require witnesses to testify who are rendered incompetent by these statutes, and there is no legislative restriction or limit upon such discretion, except that it shall be reviewable on appeal.""* natures to the note and bills of exchange in suit. The defendant called him afterwards to prove that such note and bills were accommoda- tion paper. In ruling upon his com- petency to testify upon the latter sub- ject, the court, on appeal, said: "When a witness has been sworn in chief, the opposite party may not only cross-examine him in relation to the point which he was called to prove, but he may examine him as to any matter embraced in the issue. He may establish his defense by him without calling any other witnesses. If he is a competent witness to the jury for any purpose, he is so for all purposes ; and the party who orig- inally called him and availed himself of his testimony, cannot subsequently object to him on the ground of inter- est any more than he can impeach his general character. He is es- topped from denying his competency as well as his credibility." See, also, Jackson v. Varick, 7 Cow. (N. Y.) 238, Varick v. Jackson, on error, 2 Wend. (N. Y.) 167, 19 Am. Dec. 571. In Floyd v. Bovard, 6 Watts & S. (Pa.) 75, the plaintifif called a de- fendant as a witness, and examined him. At a subsequent stage of the trial he was called and examined as a witness for the defendants. The witness was distinctly interested, but Gibson, C. J., speaking for the court, said : "The plaintiff himself had called him to prove a part of his case, the witness consenting to be sworn ; and had not this been done, he certamly would have been incom- petent to testify for his co-defend- ant. And why? Because his inter- est raised a presumption unfavorable to his credibility, which would not have been rebutted. But did not the plaintiff rebut it when he produced him as a witness worthy of credit, and had the benefit of his testimony? Or did he assert no more than that he was worthy of credit only when he testified against his own interest? The man who is honest enough to declare the whole truth, when it makes against him, will be honest enough to declare no more than the truth in his own favor. It would give a party an unjust advantage to let him pick out particular parts of a witness's testimony and reject the rest. But the matter does not rest on principle alone; for it is a famil- iar rule that a party cannot discredit his own witness, or show his incom- petency." ''Meyer v. Morris, 78 Ind. 558; Willetts v. Schuyler, 3 Ind. App. 118, 29 N. E. 273; Gilbert v. Swain, 9 Ind. App. 88, 2>6 N. E. 374. The dis- cretion with which the trial court is invested as regards testimony con- cerning matters affecting a dece- dent's estate, which occurred prior to the death of the decedent, must be determined upon the merits of each case. Forgerson v. Smith, 104 Ind. 246, 3 N. E. 866. To be avail- able on appeal, it must affirmatively appear that the trial court abused its discretion in admitting the testimony of the parties as to matter concern- § 424 COMPETENCY OF WITNESSES. 717 No general rule can be laid down for the exercise of the court's discretion in such cases, but each case must be determined upon its own peculiar characteristics.^^ The statute provides that for an abuse of the court's discretion in the admission of evidence a review may be had in the Supreme Court. Just what constitutes an abuse of the court's discretion is hard to declare; no arbitrary rule can be laid down, nor can any formal definition be given of what such abuse may be, that would fit all cases. The trial court must judge when the danger of perjur}' is removed, and must also determine what witnesses are worthy of credence, and when it is proper to permit a party to testify. No other court can so accurately determine the ques- tions as the court in whose presence the witnesses stand. It would perhaps be better if the legislature had seen fit to leave nothing to the discretion of the court, and either to positively admit or directly exclude all parties in case where the testimony refers to the acts or words of a deceased person.^'' The revised statutes of 1852 gave the court discretion in mak- ing a decedent's estate. Clouser v. Ruckman, 104 Ind. 588, 4 N. E. 202. " In an action on a promissory note against the representative of a deceased maker and a surviving maker, where each defendant set up a separate defense, it was discretion- arj'- with the trial court to permit the surviving maker to testify. Meyer v. Morris, 78 Ind. 558. It is not an abuse of discretion to exclude a party from testifying as to oral dec- larations of the decedent, by which the witness expects to acquire prop- erty belonging to the decedent. For- gerson v. Smith, 104 Ind. 246, 3 N. E. 866. The action of a trial court in requiring a witness, not otherwise competent, to testify, was the exer- cise of an absolute discretion which could not be controlled by the Su- preme Court. Perrill v. NichoUs, 89 Ind. 444. '"Forgerson v. Smith, 104 Ind. 246, 3 N. E. 866; Meyer v. Morris, 78 Ind. 558; Wrape v. Hampson, 78 Ind. 499. Where, in an action be- tween heirs, the court permits the parties to the suit to testify, the fact that there are several plaintiffs and but one defendant will not indicate an abuse of discretion on the part of the court where the defendant, of necessity, has a superior knowledge of the principal facts involved in the case. Sheets v. Bray, 125 Ind. 33, 24 N. E. 357. In an action against a devisee, founded on a transaction with his testator, after plaintiff has made out a prima facie case, it is not an abuse of the discretion vested with the trial judge, by § 526, R. S. 1908, to call plaintiff to testify thereto. Talbott v. Barber, 11 Ind. App. 1, 38 N. E. 487, 54 Am. St. 491. 7l8 INDIANA PROBATE LAW. § 425 ing tlie allowance of claims against estates to examine, under oath, the claimant or the executor or administrator of the estate.^^ But the provisions of this section were held not to apply to regularly instituted suits at law, and that in such suits the general rules of the common law as to the competency of parties to tes- tify prevailed,^** and even in suits upon claims the competency of an executor or administrator to testify did not depend upon his being called as a witness by the opposite party.^® The earlier statutes, of which the above quoted sections are the outgrowth, did not go quite so far as the present statutes do upon the matters involved. They provided that in all suits where ex- ecutors or administrators were parties in a case where a judgment might be rendered either for or against the estate represented by such executor or administrator, neither party should be allowed to testifv as a witness, unless required to do so by the opposite party or by the court trying the cause, except in cases arising up.jn contracts with the executor or administrator of such estate. ''^ This statute was first enacted in 1861, and was. with some amendments, re-enacted ^larcli 11, 1867. The statute in its present form relative to the competency of witnesses did not become the law of this state until 1881, and substantially re-enacts the rule of the earlier statutes, so that now in all cases under the statute relative to the competency of wit- nesses, provided in the sections herein set out, any party to such suit shall have the right to call and examine, as a witness in the case, any adverse party in such suit ; or the court may, in its dis- cretion, require any party to the suit, or other person, to testify. Though one be nominally an adverse party, if his real interest lies with the party calling him as a witness, he is incompetent." § 425. Unjust claim — Claimant's testimony. — Where the administrator has allowed and paid an unjust claim, the heir may contest the validity of the claim and its allowance by exceptions ^^R. S. 1852, p. 261, % 66. ^"2 G. & H., p. 168; 2 R. *S. 1876, ^'Hodson V. Alacv, 5 Ind. 500. pp. 134, 135. ^Littler V. Smiley, 9 Ind. 116. '^ Bardell v. Brady, 172 111. 420, 50 N. E. 124. § 4^5 COMPETENCY OF WITNESSES. 719 filed to the report of such administrator, and the claimant will be an incompetent witness to establish the justness of the claim and the amount due him thereon. The court says : "It has been the purpose of the courts, so far as our investigation has enabled us to judge, to carefully and vigilantly protect the estates of the dead from the danger of wrong by the living. Whenever the question has been presented for judicial decision, the earnest en- deavor has been to shut the door against possible collusion, fraud, or discoveiy. Following the current of judicial opinion it must be held that the original claimant is an incompetent witness in such proceeding as the present. If appellant's contention is to prevail, then all one need do who asserts a claim against the es- tate of a decedent is to procure its payment ; and when the ques- tion of whether the payment was justly made or not comes up for trial, offer himself as a witness and make good his claim. To pennit this would tend to make administrators careless of their duties, for they would feel that if objection should be urged against their action they could sustain it by the testimony of the party by whom the claim was made. If we declare the nile to be that the claimant is a competent witness, we make plain the way for evading the statute."" Where the administrator is personally interested in having the claim established he is not permitted to testify. Where an ad- ministrator has paid a claim without it having been filed and al- lowed and his right to credit for such payment is contested, nei- ther the administrator nor the alleged creditor can testify.*^ *=Clift V. Shockley, 11 Ind. 297. So. 419; In re Smith, 153 N. Y. 124, *' Hullett V. Hood, 109 Ala. 345, 19 47 N. E. ZZ. CHAPTER XX. APPEALS IX PROBATE MATTERS. §426. Right of appeal wholly statu- §430. As to parties to appeal. tory. 431. Time for perfecting appeals. 427. The purpose of the statute. 432. Appeals in certain cases. 428. When appeals should be taken 433. When an appeal bond must be under the civil code. filed. 429. To what court appeals must be 434. Right of appeal without bond. taken. 435. Review of judgment. § 426. Right of appeal wholly statutory. — To appeal signi- fies to remove a cause in litigation from an inferior to a higher jurisdiction. The right of appeal rests solely upon statutor}- pro- visions and unless those provisions are complied with the right cannot be made available.^ The probate power of the courts rests in the statutes, and the right to substitute the judgment of some higher court for the or- der, judgment, or decree of the probate court must likewise be found in the statutes. - An appeal may include both questions of fact and questions of law, but power is conferred upon the appellate tribunal to deter- mine and adjudicate questions of law only.^ Our statute on appeals in probate matters provides that any person considering himself aggrieved by any decision of a circuit 'Galentine v. Wood, 137 Ind. 532, ' Coflfman v. Reeves, 62 Ind. 334; 35 N. E. 901; Bollenbacher v. Whis- Eckert v. Binkley, 134 Ind. 614, 33 nand, 148 Ind. Zll, 47 N. E. 706; N. E. 619, 34 N. E. 441; Wait v. Briggs V. Barker, 145 Mass. 287, 13 Westfall, 161 Ind. 648, 68 N. E. 271. N. E. 907; Dennison v. Talmage, 29 But see § 698, Burns' R. S. 1908. Ohio St. 433. Held applicable only in cases of ex- - Me3^er v. Stewart, 48 Md. 423 ; clusively equitable jurisdiction. Park- Ross V. Murphy, 55 Mo. 372. ison v. Thompson, 164 Ind. 609, 1Z 720 § 4-6 APPEALS IN PROBATE MATTERS. 72 1 court or judge thereof in vacation, growing out of any matter connected with a decedent's estate, may prosecute an appeal to the Supreme Court, upon fihng with the clerk of such circuit court a bond with penalty in double the sum in controversy, in cases where an amount of money is involved, or where there is none, in a reasonable sum, to be designated by such clerk, with suffi- cient security, payable to the opposite party in such appeal, con- ditioned for the diligent prosecution of such appeal, for the pay- ment of the judgment, which may be affirmed and all costs, if costs be adjudged against the appellant.* Under this section of the statute, any one aggrieved, or so considering himself, by any decision of any matter growing out of or connected with proceedings relative to the settlement of a decedent's estate, has an appeal provided for him, and must take such appeal in the manner there fixed. These statutes contain all the law governing appeals in such cases. It will be noted that this section of the statute gives a right to appeal from "any decision" to any one aggrieved thereby, and it may be exercised by any such person whether a party to the X. E. 109; Hanrahan v. Knicker- aside an order for the distribution of bocker, 35 Ind. App. 138, 72 N. E. an estate. Wood v. Wood, 51 Ind. 1137. 141. The sections of the statute con- * Burns' R. S. 1908, § 2977. Ap- cerning decedents' estates relating to peals taken to the Supreme Court appeals are applicable only to appeals from all orders, decisions and judg- from decisions rendered in proceed- ments relating to the settlement of ings provided for in that statute, and decedents' estates must be taken un- have no relation to cases prosecuted der this section. Seward v. Clark, independently of that statute. Rusk 67 Ind. 289; Bell v. Mousset, 71 Ind. v. Gray, 74 Ind. 231; Willson v. Bin- 347 ; Yearley v. Sharp, 96 Ind. 469 ; ford, 74 Ind. 424 ; Hillenberg v. Ben- Browning V. McCracken, 97 Ind. 279; nett, 88 Ind. 540; Dillman v. Dillman, Miller v. Carmichael, 98 Ind. 236; 90 Ind. 585; Bake v. Smiley, 84 Ind Bennett v. Bennett, 102 Ind. 86, 1 N. 212; Taylor v. Burk, 91 Ind. 252 E. 199; Rinehart v. Vail, 103 Ind. McCurdy v. Love, 97 Ind. 62; Heller 159, 2 N. E. 330. An appeal from a v. Clark, 103 Ind. 591, 3 N. E. 844 judgment in a proceeding to set aside Walker v. Steele, 121 Ind. 436, 22 N a final settlement must be taken un- E. 142, 23 N. E. 271; Koons v. Mel der this section. Webb v. Simpson, lett, 121 Ind. 585, 23 N. E. 95, 7 L. R 105 Ind. 327, 4 N. E. 900. An appeal A. 231n; Simmons v. Beazel, 125 Ind will not lie from an order setting 362. 25 X. E. 344. 46 — Pro. Law, 722 INDIANA rROBATE LAW. § 426 record or not.'' Tlie person appealing must show some interest in the matter in Htigation, that is some pecuniary interest. He must be aggrieved in some legal sense by some judgment, order, de- cree, or by "any decision" which operates directly upon some property, money, or thing of value, in which he is pecuniarily interested ;° an interest such as a creditor, distributee, legatee, heir, or devisee. To be "aggrieved" in one's sense of justice, or feeling of what is right or proper, gives no right of appeal.' It is probable that one who becomes interested in the subject- matter of an appeal after the appeal has been taken could be made a party in the appellate tribunal.^ And where an executor or ad- ministrator appeals it is not necessar}' that he be aggrieved in his individual capacity." It has been settled by the decisions of the Supreme Court, that the provisions of the civil code, in relation to appeals to thai court from judgments in civil actions, are not applicable to and do not govern appeals from "any decision of the circuit court, or judge thereof in vacation, growing out of any matter con- nected with a decedent's estate," but that these latter appeals are governed and controlled by the sections of the statute regu- lating the settlement of decedents' estates, and to this extent overrules the case of Hamlyn v. Xesbit. t^j Ind. 284. and cases based thereon, which hold that such appeals might be taken under this statute and also under the provisions of the code relative to appeals in civil cases. ^° * Schouler Extrs., § 151 ; Bryant v. 212 ; McCurdy v. Love, 97 Ind. 62 ; Allen; 6 N. H. 116; Wood v. John- Browning v. McCracken. 97 Ind. son, 13 111. App. 548. 279; Bennett v. Bennett, 102 Ind. 86, •Pettingill v. Pettingill. 60 Me. 1 N. E. 199; Walker v. Steele, 121 411; Deering v. Adams, 34 Me. 41. Ind. 436, 22 X. E. 142. 23 X. E. 271; 'Norton's Appeal. 46 Conn. 527. Koons v. Mellett. 121 Ind. 585, 23 'Rogers v. Martin, 58 X. H. 442; X. E. 95, 7 L. R. A. 231n. Pro- Ewbanks Manuel, § 142. ceedings treated as in mandamus, " Swann v. Housman, 90 Va. 816, ending in a final order against an 20 S. E. 830. administrator, compelling him to pay '"Seward v. Clark, 67 Ind. 289; money, invokes the probate jurisdic- Bell V. Mousset, 71 Ind. 347; West v. tion of the court; and an appeal Cavins, 74 Ind. 265 ; Taylor v. Burk, from such an order not taken with- 91 Ind. 252; Bake v. Smiley, 84 Ind. in the time required, should be dis- § 4^7 APPEALS IN PROBATE MATTERS. 723 § 427. The purpose of the statute. — This section of the statute, and the other sections considered in this chapter, were intended to be appHed only to such suits or proceedings as were manifestly had and held under the provisions of the act for the settlement of decedents' estates, and which were not authorized by any other statute; and appeals in other classes of actions are regulated by and must conform to the requirements of the civil code on that subject/^ The proceeding under this statute is one not provided for in the civil code, but a special and necessary- mode of controlling the action of executors and administrators, and expediting the settlement of estates. It is necessary that estates should be closed up in as speedy a manner as possible, and their settlement should not be delayed by long and vexatious appeals. For this purpose, this statute, making a short limit upon such appeals, was enacted/" The purpose and intention of the act for the settlement of decedents' estates is the speedy settlement of such estates, the missed. Bennett v. Bennett, 102 Ind. subject of appeals. Seward v. Clark, 86, 1 X. E. 199. 67 Ind. 289, and Bell v. Mousset, 71 "Rusk V. Gray, 74 Ind. 231; Will- Ind. 347, distinguished. Rusk v. son V. Binford, 74 Ind. 424; Galen- Gray, 74 Ind. 231; Willson v. Bin- tine V. Wood, 137 Ind. 532, 35 N. E. ford, 74 Ind. 424; Bake v. Smiley, 84 901; Beaty v. Voris, 138 Ind. 265, 37 Ind. 212; HiUenberg v. Bennett, 88 X. E. 785. A proceeding by a cred- Ind. 540; Heller v. Clark, 103 Ind. itor of a legatee against such lega- 591, 3 N. E. 844. tee and the administrator with the '= Browning v. McCracken, 97 Ind. will annexed, to reach money in the 279; Miller v. Carmichael, 98 Ind. hands of such administrator, for the 236; Bender v. Wampler, 84 Ind. 172. payment of a debt due from such .-Xn appeal from the judgment in a legatee, is not a proceeding author- proceeding to set aside the final re- ized by the act providing for the set- port of an administrator is governed tlement of a decedent's estate; and, by the statutes relating to decedents' hence, the law regulating appeals estates, and it must be taken within from such proceedings has no appli- the time therein designated. Webb cation. Koons v. Mellett, 121 Ind. v. Simpson, 105 Ind. 327, 4 N. E. 585, 23 X. E. 95, 7 L. R. A. 231n. In 900. An appeal may be taken from an action to recover a money de- a judgment approving a final settle- mand on contract, the appeal is reg- ment without awaiting the final dis- ulated by, and must conform to, the charge of the executor or adminis- requirements of the civil code on the trator. Taylor v. Burk, 91 Ind. 252. 724 INDIANA PROBATE LAW. § 4-7 final determination, without unnecessary delay, of all ques- tions involved in or affecting said estates, the prompt payment of all the decedent's debts and liabilities, and the distribution at once of the surplus. The legislature never intended that the settlement of such estates should be delayed and embar- rassed by appeals to the Supreme Court from decisions ren- dered in the progress of such settlement by the provisions of the code relating to appeals in ordinary civil actions, but that all such appeals must be taken witliin the time limited by the section of the statute following the one under consideration.^' Nor do these statutes apply to civil suits by an administrator or executor to recover a money demand on contract. If he sees fit to appeal in such cases, the appeal must be in conformity to the provisions of the code as to appeals in civil actions.^* But the right of a party to an appeal under the code of civil procedure cannot be cut off or abridged by joining him as de- fendant in an action against an estate, such action being founded on a claim for the payment of which such party is not jointly bound with the decedent by contract; for before a party can be summoned to answer to a claim filed against the estate of a deceased person, it must be shown that such i)arty and the person against whose estate the claim is filed were jointly liable by a contract which is the basis of the pending claim. ^' "Seward v. Clark, 67 Ind. 289; and mortgage assigned by the dece- Ten Brook v. Maxwell, 5 Ind. App. dent, is properly taken if it conforms 353, 32 N. E. 106; Merritt v. Straw, as to time and manner with the stat- 6 Ind. App. 360, 23 N. E. 657. iitcs. governing appeals from the cir- "Hillenberg v. Bennett, 88 Ind 540; Dillman v. Dillman, 90 Ind 585; Yearley v. Sharp, 96 Ind. 469: Browning v. McCracken, 97 Ind. 279; Heller v. Clark, 103 Ind. 591, 3 N. E ciiit and superior courts in civil ac- tions. Walker v. Steele, 121 Ind. 436. 22 N. E. 142, 23 N. E. 271. "Claypool V. Gish, 108 Ind. 424, 9 X. E. 382. Where one is made a 844. The time and manner of taking party to an action against an estate, and perfecting an appeal, in an action founded on a claim for which he is by an administrator on a note exe- not jointly bound with the decedent cuted to his decedent in his lifetime, by contract, he is not required to ap- is governed by the code. Merritt v. peal under the statute regulating ap- Straw, 6 Ind. App. 360, 33 N. E. 657. peals in matters connected with de- An appeal in an action by an admin- cedent's estate, but may appeal un- istrator to recover as assets a note der the code of civil procedure. In § 428 APPEALS IN PROBATE MATTERS. 725 An appeal from a judgment in a proceeding to set aside the final report of an executor or administrator is governed and controlled by the provisions of these statutes and not by the provisions of the civil code relating to appeals/*^ § 428. When appeals should be taken under the civil code. — The statutes considered in this chapter provide the mode for appeals of actions growing out of decisions rendered in pro- ceedings relative to matters connected with a decedent's estate, and apply only where probate jurisdiction is being exercised and not to appeals in actions authorized by the civil code. The test is, did the decision appealed from grow out of a matter connected with the settlement of a decedent's estate ?^' The provision of this section of the statute in reference to the time when the transcript should be filed in the Supreme Court does not apply to appeals in proceedings supplementary to execution when an executor or administrator may have been required to answer under § 862, Burns' R. S. 1908/^ In an action begun during the lifetime of the plaintiff, to annul and enjoin the collection of a judgment, and prosecuted to a final an action to foreclose a mortgage, The provision of the decedent's act re- where the mortgagor dies pending quiring a bond to be filed within ten the action and his administrator is days in order to take an appeal from made a party defendant, an appeal any decision growing out of any mat- therefrom is taken under the civil ter connected with a decedent's es- code, and not under the decedent's tate, is only applicable to cases where act. Holland v. Holland, 131 Ind. the probate jurisdiction is involved, 196, 30 N. E. 1075. and has no reference to an action "Webb V. Simpson, 105 Ind. Zll, where the validity of a will is in- 4 N. E. 900; Taylor v. Burk, 91 Ind. volved. or a suit to quiet title is 252. brought by an executor. Mason v. " Mark v. North, 155 Ind. 575, 57 Roll, 130 Ind. 260, 29 N. E. 1135. An N. E. 902; Koons v. Mellett, 121 Ind. appeal from a proceeding instituted 585, 2Z N. E. 95, 7 L. R. A. 231n; by an executrix against the heirs Mason v. Roll, 130 Ind. 260, 29 N. E. and legatees of the decedent to have 1135; Holderman v. Wood, 34 Ind. the will construed is not governed, App. 519, 1Z N. E. 199; Rogers v. as to the time of taking the appeal. State, 26 Ind. App. 144, 59 N. E. 334; by the provisions of the decedent's Baker v. Edwards, 156 Ind. 53, 59 act. Simmons v. Beazel, 125 Ind. N. E. 174. 362, 25 N. E. 344. "Dillman v. Dillman, 90 Ind. 585. 'J26 INDIANA PROBATE LAW. § 428 hearing after the death of the plaintiff by his administrator, who had been substituted as plaintiff in such action, the right of appeal and the manner of taking it are governed by the civil code and not by this statute. It is not a matter growing out of or connected with a decedent's estate.^" Where there is no right of revivor in an executor or admin- istrator there can be no right of appeal.-'' Where an action has been commenced before the death of the decedent, and has been prosecuted to a final judgment by the substitution of his executor or administrator as a party thereto, an appeal from such judgment is not governed by these statutes, but must be taken according to the provisions of the civil code.^^ The rule is that, where the action does not involve an exer- cise of the probate jurisdiction of the court, or is one which can be brought in a court having no probate jurisdiction, the appeal must be taken under the provisions of the civil code.-- E. 160; May v. Hoover, 112 Ind. 455, 14 N. E. 472; Holland v. Hol- land, 131 Ind. 196, 30 N. E. 1075. An appeal from a proceeding to have a will construed is governed by the civil code. Simmons v. Beazel, 125 Ind. 362, 25 N. E. 344. When an ac- tion is not necessarily brought in the court having probate jurisdiction, then the appeal lies under the civil code. Mason v. Roll, 130 Ind. 260, 29 N. E. 1135. In a proceeding by a creditor of a legatee to have a legacy applied on a debt ow^ing by the leg- atee, the appeal is governed by the civil code. Koons v. Mellett, 121 Ind. 585, 23 N. E. 95, 7 L. R. A. 231n. Persons made parties to claims filed against estates when they are not jointly bound by contracts with the decedent, may appeal from judgments rendered, under the civil code. Clay- pool V. Gish, 108 Ind. 424, 9 N. E. 382. "Heller v. Clark, 103 Ind. 591, 3 N. E. 844. ■" Stout V. Indianapolis &c. R. Co., 41 Ind. 149. =HVright V. Manns, 111 Ind. 422, 12 N. E. 160; May v. Hoover, 112 Ind. 455. 14 N. E. 472; Mason v. Roll, 130 Ind. 260, 29 N. E. 1135; Holland V. Holland, 131 Ind. 196, 30 N. E. 1075. "Louisville &c. R. Co. v. Etzler, 4 Ind. App. 31, 34 N. E. 669. Appeals from judgments in actions brought by executors or administrators to collect debts, or assets, due the es- tate, are governed by the provisions of the civil code. Rusk v. Gra}*-, 74 Ind. 231; Hillenberg v. Bennett, 88 Ind. 540; Walker v. Steele, 121 Ind. 436, 22 N. E. 142, 23 N. E. 271. If an executor or administrator is sub- stituted in a suit in the place of a decedent, an appeal in such a case will be governed by the civil code. Wright V. Manns, 111 Ind. 422, 12 N. 428 APPEALS IN PROBATE MATTERS. 727 An appeal from a proceeding brought by an executor against the heirs and legatees, to secure a construction of a will, is governed by the civil code.-^ And the same rule applies to a proceeding brought by the creditor of a legatee against the legatee and the executor to reach money in the hands of the executor for the payment of a debt due from such legatee.-^ An action brought by an administrator to recover possession of assets belonging to the estate is not an action growing out of the settlement of the estate, and an appeal in such action is gov- erned by the civil code.-^ An action to secure the probate of an alleged will is an action preliminaiy to the settlement of an estate, and as the effect of such action is to determine the property rights of living persons by establishing the evidence thereof, an appeal in such case should be taken under the civil code.-® An appeal from the judgment in an action on the bond of an administrator is governed by the civil code and not by the act relating to the settlement of decedents' estates."' Where an action is brought by an administrator for the pur- pose of securing an order to sell real estate of the decedent to make assets to pay debts, and as an incident to that purpose, he asks to set aside a conveyance made by such decedent as fraudu- lent, an appeal must be taken under the decedents' act.-^ But if the main and only purpose of the action was to set aside a fraudulent conveyance the appeal would be governed by the civil code. Where the remedy sought by or against an estate is not pro- vided by the probate procedure act, but must be enforced under the civil code, the appeal must be taken under that code. The =^ Simmons v. Beazel, 125 Ind. 362, =« Morell v. Morell, 157 Ind. 179, 25 N. E. 344. 60 N. E. 1092. '*Koons V. Mellett, 121 Ind. 585, =^ Rogers v. State, 26 Ind. App. 23 N. E. 95, 7 L. R. A. 231n. 144, 59 N. E. 334; Cravens v. State, =' Mark V. North, 155 Ind. 575, 57 46 Ind. App. 347, 92 X. E. 552. N. E. 902. ^Galentine v. Wood, 137 Ind. 532, 35 K. E. 901. /-' INDIANA PROBATE LAW. § 429 fact that the settlement of a decedent's estate has a remote con- nection with the remedy can make no difference.-" § 429. To what court appeals must be taken. — The at- tempt of the legislature of 1911'" to change the jurisdiction of the appellate court having been rendered abortive by the decision of the Supreme Court in Ex Parte France,^' the jurisdiction of that court as set out in the act of 1891 and subsequent amend- ments thereto remains in force.^- Such jurisdiction being now the same as before the passage of the Act of 1911. By the law as it now is jurisdiction of appeals in probate mat- ters, in the first instance, is in the appellate court except where the title to real estate comes in question. Of the two courts of higher appellate jurisdiction, the Supreme Court and the appellate court, the latter takes jurisdiction in matters relating to the settlement of decedents' estates, i. All cases wherein claims against decedents' estates are allowed or allowance refused. 2. All cases wherein exceptions are filed to reports of administrators, executors or guardians. 3. All cases wherein orders or judgments are given refusing to appoint administrators, executors or guardians. 4. All cases wherein orders or judgments are made or given removing or refusing to remove administrators, executors or guardians. And in all such matters within the jurisdiction of that court its decisions shall be final, except as controlled and limited by the right of transfer to the Supreme Court. ^^ Such jurisdiction in probate matters as is not specifically con- ferred is carried into the appellate court by a residuary clause of another section of the statute, in which, after specifying in what matters the Supreme Court shall have jurisdiction, it is pro- vided that "all appealable cases other than those herein men- tioned, shall be taken to the appellate court. "^* =* Roach V. Clark, 150 Ind. 93, 48 ''Ex parte France, — Ind. — , 95 N. E. 796, 65 Am. St. 353; Harrison X. E. 515. Nat. Bank v. Culbertson, 147 Ind. "Burns' R. S. 1908, §§ 1382, 1392. 611, 45 N. E. 657. 47 N. E. 13. '^Burns' R. S. 1908. § 1394. '"Acts 1911. p. 201. "Burns- R. S. 1908, § 1392. § 430 APPEALS IN PROBATE MATTERS. 729 In appeals from the allowance or disallowance of claims against estates, the jurisdiction is in the appellate court regardless of the amount in controversy.^^ Appeals to said court shall be taken in the manner and with the effect and subject to the same limitations and restrictions provided by law in cases of appeals to the Supreme Court, and said court and judges thereof, in vacation or recess, shall have the authority possessed by the Supreme Court or the judges thereof, in vacation or recess, to stay proceedings, issue in- junctions and mandates, and to do other acts and things in aid of the exercise of its jurisdiction or to enforce its judgments or orders. The pleadings and practice and proceedings in cases appealed to said court shall be the same as provided by the Supreme Court, so far as the same are applicable and not in- consistent with this act.^® The claims to be allowed or disallowed named in this statute are such claims as are required to be filed against decedents' estates and entered upon the allowance docket and transferred to the issue docket of the court for trial. ^^ In taxing costs against the parties to such appeal the same rules shall be obsen^ed as in cases of appeals from justices of the peace to the circuit courts.^* § 430. As to parties to appeals. — The statute provides that any person who is aggrieved, desiring such appeal, may take the same in his own name without joining any other person.^® But all adverse parties must be made appellees, that is all parties adverse to the appellant in the court below." An administrator, who in his individual capacity, appeals from an order of the court fixing his allowance for services as such administrator, must make himself, as administrator of the estate, a party ap- "" Ray V. :Moore, 154 Ind. 368, 56 N. '' Burns' R. S. 1908, § 2979. See E. 841. § 1796 for costs on appeal from jus- '^ Burns' R. S. 1908, § 1416. tices of the peace. ^ Rauh V. Weis, 133 Ind. 264, 32 ^ Burns' R. S. 1908, § 2978. X. E. 880 ; Ex parte Sweeney, 126 '" Kuhn v. American &c. Ins. Co., Ind. 583, 27 N. E. 127; Baker v. 160 Ind. 356, 66 N. E. 890. Groves, 126 Ind. 593, 26 N. E. 1076. 730 INDIANA PROBATE LAW. § 43O pellee to such appeal." It is an elementan- rule in appellate proceedings that all the parties to, and affected by, the judgment appealed from must be actually or constructively, included in the appeal, upon the principle that those only before the appellate court are l)Ound by the appeal, and that hence the inclusion of all the parties to the judgment appealed from is necessary to confer complete jurisdiction upon the latter court/" So where a fund is in court for distribution the claimants of the fund may, in some instances, be affected by a judgment awarding part of it to one of their number, and if so, all affected should be parties." And if any such fund is in the hands of an administrator, he is a necessary party to an appeal from an order of distribution.'** Where parties on appeal are named in the assignment of errors as they are named in all the proceedings in the court l^elow, this will be sufficient though they may not be named correctly.^'' It is a rtile, both of the Supreme and appellate courts, that the assignment of errors shall contain the full names of all the parties, and failing this the appeal will be dismissed. Under this rule naming one simply as "executor" or "administrator" is not suffi- cient to constitute him a party to an appeal in his fiduciary ca- pacity. AMicre persons sue or are sued in a representative or ■" Moore v. Ferguson, 163 Ind. 395, distinct persons. The appeal mani- 72 N. E. 126. festly is to protect his individual in- In this case the court saj'-s : terest, and cannot in any manner "Jonathan J. Moore, personally, is conduce to the interest of the estate the only person, under the facts, of the decedent. This certainly is interested in securing a reversal of obvious. Case v. Nelson, (1899) 22 the judgment, while, upon the other Ind. App. 22, [52 N. E. 176]." An hand, the estate of Willis E. Moore administrator cannot appeal from a is interested in maintaining it as ren- ruling by which the estate has been dcred in the lower court. Under benefited. Richey v. Cleet, 46 Ind. these circumstances the interest of App. 326, 92 N. E. 175. Moore as an individual and the in- *' Hunderlock v. Dundee &c. Co., terest of the estate which he seeks 88 Ind. 139. to represent as administrator are an- ^ Elliott Appellate Pro., § 140. tagonistic to each other. Moore as ** Paxton v. Tyler, 20 Ind. App. administrator of the estate and 455, 50 N. E. 45. IMoore in his own right or person in "JeflFries v. Orndorf, 44 Ind. App. a legal sense are two separate and 225, 88 X. E. 958. §431 APPEALS IN PROBATE MATTERS. 731 official capacity the rule requires that they shall be properly described as such representatives or fiduciaries.*'^ The test by which to determine who should be made an appel- lee in an appeal is, has the party an interest in maintaining the judgment from which the appeal is prosecuted?*' In one case an administrator filed a petition for an order to sell real estate to pay an allowed claim secured by a lien on the land. Other creditors were made parties and filed a cross-com- plaint attacking the allowed claim and the validity of the lien. On the hearing the court set aside the allowance. On appeal it was held that the administrator was a necessary party to the appeal."^ In an action for the construction of a will where all in- terested persons, as well as the executor, who was also a legatee, were made parties, the executor in his representative capacity, has no right of appeal. *^^ §431. Time for perfecting appeals. — The statute now re- quires the transcript on appeal to be filed in the court to which the appeal is taken within ninety days after filing the appeal bond, and requires the appeal bond to be filed within ten days after the decision complained of is made.*' Thus making the extreme limit in which transcripts may now be filed one hundred days instead of forty as under the old statute. Ten days after the decision complained of has been made the person aggrieved must have filed an appeal bond, where such bond is required, and within ninety days after the bond is filed the transcript must be filed in the appellate court. Filing the bond before the expiration of the ten days allowed, however, will not shorten the time for filing the transcript. ^° « Whisler v. Whisler, 162 Ind. 136, ■**» Murphey v. Murphey, 174 Ind. 67 X E 984 70 N. E. 152; Bender 426, 92 N. E. 165. V. State, - Ind. -, 95 N. E. 305. « Burns' R. S. 1908, § 2978. *^Ewb'ank's Manual, § 149; Elliott ^"Simons v. Simons, 129 Ind. 248, App. Proc, § 160; Whisler v. Whis- 28 N. E. 702. Parties should be ler, 162 Ind. 136, 67 N. E. 984, 70 N. given notice of an application to ex- £ 'l52 tend the time for an appeal, but the « Beaty v. Voris, 138 Ind. 265, V? appeal will not be dismissed for the j^ £ 735 want of such notice when both par- J2i2 INDIANA PROBATE LAW. § 43 1 Where, under this statute, an appeal is taken by an executor or administrator, he not being required to tile any bond, in what time lie shall file the transcript in the Supreme Court, is not explicitly stated in this statute. The statute requires that the transcript must be filed in the Supreme Court within ninety days after filing the bond. The court in one case where this point was raised held that : 'Tn the sections of the statute above referred to, the legislative intent is clearly manifest that, in every case where an appeal may be taken to this court from any decision of the circuit court, or judge thereof in vacation, in regard to any matter connected with a decedent's estate, the transcript must be filed in this court, at the latest, within twenty (now ninety) days after the decision complained of was made, unless for good cause shown this court may direct that the appeal may be perfected after the expiration of that time, and within one year after such decision. The precise question here presented has never been considered by this court in any of its previous decisions, but we do not doubt the correctness of our conclusions. The appeal in this case was not taken in conformity with the requirements of the statute, and the appellee's motion to dismiss it must be sustained."''^ The case of Bender v. Wampler, 84 Ind. 172, and others'- are based upon the statutes of 1876," in which no time was fixed ties are brought into court. Duncan the transcript was required to be V. Gainey. 108 Ind. 579, 9 N. E. 470. filed in the Supreme Court within A second motion to dismiss an ap- twenty days after the decision was peal will not be entertained, although made, unless the time for appeal was the ruling on the prior motion was extended. Miller v. Carmichael, 98 erroneous. Walker v. Heller, 104 Ind. 236. Under the statute of 1881, Ind. 327, 3 N. E. 114. the transcript was required to be ""Yearley v. Sharp. 96 Ind. 469; filed in the Supreme Court within Heller v. Clark, 103 Ind. 591, 3 N. E. ten days after the filing of the bond. 844. After submission of a cause it Browning v. McCracken, 97 Ind. 279. is too late to move for the dismissal ^ Bake v. Smiley, 84 Ind. 212 ; Sew- of the cause for want of an appeal ard v. Clark, 67 Ind. 289; Bell v. bond. West v. Cavins, 74 Ind. 265. Mousset, 71 Ind. 347; West v. Cav- When an executor or administrator ins, 74 Ind. 265. appealed under the statute of 1881, "^ 2 R. S. 1876, p. 557. §431 APPEALS IN PROBATE MATTERS. 733 for the filing of the transcript, as in this statute. These cases upon this point may, therefore, be no longer considered as law. The old statute provided that the bond should be filed in thirty days after the rendition of the judgment, but it did not limit the time for filing the transcript, and under this statute it was held that an administrator had a year in which to file a tran- script. But the present statute fixes a time in which such tran- script must be filed, and is applicable alike both to executors and administrators, as well as all other persons aggrieved.^*. This section of the statute not only controls the time in which the appeal bond shall be filed, but the time in which the tran- script must be filed and the appeal perfected. The time given within which to file the transcript is the limit of time for the perfection of the appeal unless for "good cause shown" the appellate court sees fit to extend such time, not longer than one year after the decision complained of is rendered. The statute allows full one hundred days within which to per- fect the appeal, and the fact that the appellant files his bond in less than ten days, will not limit the time for filing the tran- script. The law gives the same time to both parties. An ex- ecutor or administrator is not required to file a bond, yet he may take the full one hundred days for perfecting an appeal, and the opposite party is entitled to the same time.^^ Where an appeal has not been perfected within the time pre- scribed, and in compliance with the provisions of this statute such appeal will be dismissed.^® "Miller v. Carmichael, 98 Ind. transcript must be filed within thirty 236. Under this section, as amended, days. This case is not in harmony the appeal bond must be filed within with the decision in Simons v. Si- ten days after the decision is made, mons, 129 Ind. 248, 28 N. E. 702. and the transcript must be filed in » Simons v. Simons, 129 Ind. 248, the Supreme Court within thirty days 28 N. E. 702. See Campbell v. Hor- after filing the bond, when there is ner, 12 Ind. App. 86, 39 N. E. 768. no extension of time for taking an =« Bollenbacher v. Whisnand, 148 appeal. Rinehart v. Vail, 103 Ind. Ind. 377, 47 N. E. 706; Harrison Nat. 159, 2 X. E. 330. In Campbell v. Bank v. Culbertson, 147 Ind. 611, Horner, 12 Ind. App. 86, 39 X. E. 45 X. E. 657, 47 N. E. 13 ; Mumf ord 768, it was held that where an appeal Co. v. Terry, 43 Ind. App. 339, 87 was taken bv an administrator the X. E. 253. In this case the court says : 734 INDIANA PROBATE LAW. § 432 §432. Appeals in certain cases.— It was held in a case where an administrator refused to pay, out of money in his hands received from a sale of a decedent's real estate, sufficient to satisfy the liabilities of a finn to which the decedent belonged, under an order of the court obtained by the sufviving partner, that, notwithstanding the form of the proceeding brought to com- pel such payment, the substance being matter of strictly probate jurisdiction, an appeal from a final order therein must be taken under this statute." Where a widow makes application to the court for an order upon the administrator of her deceased husband, to pay to her the proceeds of real estate of such decedent sold by such ad- ministrator, to make up to her the full amount of her statutory allowance, and such application is contested by creditors who claim the fund b>- reason of judginent liens against such real estate; from a final order of the court upon such application, an appeal, if taken, is governed by this statute." A guardian ad litem of infant defendants cannot appeal to the Supreme Court in In's own name.^** Prior to the adoption of the present statute,"" no appeal to the Supreme Court would lie from the order or action of the circuit court in approving or disapproving the report of any executor or administrator in partial settlement of an estate.*'^ "These sections are certainly too court within ninety days after filing plain to need interpretation. They the bond, or come before this court provide specifically how such appeals within one year after such decision shall be taken, and this excludes any and show good cause and obtain other mode. The reason is obvious, leave to appeal. Lindley v. Darnall Estates should not be tied up in vex- (1900), 24 Ind. App. 399, [56 N. E. atious litigation, and persons suing 861]." an estate should not be permitted to " Bennett v. Bennett, 102 Ind. 86, 1 do as appellant has sought to do in X. E. 199. this case— withhold its appeal for '* Browning v. McCracken, 97 Ind. one year after the decision is made, 279. without adequate excuse. Appeals of "•" Harlan v. Watson, 39 Ind. 393. this character can only be had either ''* Burns' R. S. 1908, § 2906. by filing the proper bond in the cir- " Goodwin v. Goodwin, 48 Ind. cuit court within ten days after the 584; Wood v. Wood, 51 Ind. 141. decision, and the transcript in this § 432 APPEALS IN PROBATE MATTERS. 735 So long" as a claim against an estate is pending in the Supreme Court on appeal, the final settlement of such estate must be delayed unless some legal provision is made for the payment of the claim if finally adjudged against the estate.*'" As the proceeding for the sale of a decedent's real estate by his executor or administrator is provided for and regulated exclusively by the act for the settlement of decedents' estates, an appeal by any party aggrieved by any decision in such proceed- ing must be taken under the provisions of these statutes. The civil code makes no provision for such proceedings, and they are not within the ordinary common-law jurisdiction of the circuit court. Under the above section of the statute an appeal bond must be filed in ten days from the date of the decision, except when the appeal is taken by an executor or administrator, in which case no bond is required, and the transcript must be filed within ninety days from the date of filing the bond unless for good cause shown the Supreme Court shall direct such appeal to be granted within one year.''^ And where an executor or administrator brings an action to set aside a fraudulent conveyance of lands, for the purpose of subjecting them to sale for the payment of his decedent's debts, an appeal from a judgment in such action is governed by the statutes under consideration." "= Heaton v. Knowlton, 65 Ind. 255. 35 N. E. 901. Under the act con- •"Rinehart v. Vail, 103 Ind. 159, 2 cerning decedents' estates in force in N. E. 330; Beaty v. Voris, 138 Ind. 1876, an administrator might appeal 265, Zl N. E. 785; §§ 2977, 2978, within one year from the judgment Burns' R. S. 1908, govern where a against him on a petition to sell real widow applies for an order upon the estate to pay debts. Hunter v. administrator of her deceased hus- French, 86 Ind. 320. The proceed- band, requiring him to pay to her the ing for the sale of real estate by an proceeds of real estate to make up to administrator is regulated exclusively her a deficit of the five hundred dol- by the act for the settlement of de- lars allowed to her by law, and mak- cedents' estates, and an appeal by an ing judgment creditors parties, and aggrieved party must be taken under where the administrator by leave has the provisions of such act. Rinehart paid the money into court, and has v. Vail, 103 Ind. 159, 2 N. E. 330; been discharged, and an appeal taken. Beaty v. Voris, 138 Ind. 265, Zl N. E. Browning v. McCracken, 97 Ind. 279. 785. "Galentine v. Wood, 137 Ind. 532, 736 INDIANA PROBATE LAW, § 433 Whenever the claim or right presented for recovery has been against the estate of the decedent it has been uniformly held that the practice in appealing was that prescribed by the statutes under consideration.'^^ On the other hand it has been held with like uniformity that if the cause of action or demand is in favor of the estate, and the procedure for its enforcement is not pre- scribed by the statutes relating to the settlement of decedents' estates, the practice on appeals is that prescribed by the civil code/'*^ There is also a class of cases holding that where pending an action, the death of a party is suggested and his administrator is substituted the appeal from the decision therein is governed by the provisions of the decedents' estates act.°^ These cases seem to establish conclusively that it is not every decision grow- ing out of a matter connected with the settlement of a decedent's estate that is appealable under the act for the settlement of a decedent's estate. In addition there is still another class of cases which hold that where the remedy is given and the procedure is prescribed by the decedents' act that the right of appeal given in that act must be pursued. '^'^ § 433. When an appeal bond must be filed. — The appeal bond required in the preceding section shall be filed within ten days after the decision complained of is made, unless, for good cause shown, the court to which the appeal is prayed shall direct •''Bennett v. Bennett, 102 Ind. 86, 12 N. E. 160; May v. Hoover, 112 1 N. E. 199 ; Miller v. Carmichael, 98 Ind. 455, 14 N. E. 472 ; Holland v. Ind. 236; Harrison Nat. Bank v. Cul- Holland, 131 Ind. 196, 30 N. E. 1075; bertson, 147 Ind. 611, 45 N. E. 657, Harrison Nat. Bank v. Culbertson, 47 N. E. 13; Ten Brook v. Maxwell, 147 Ind. 611, 45 N. E. 657, 47 N. E. 5 Ind. App. 353, 32 N. E. 106. 13 ; Louisville &c. R. Co. v. Etzler, «" Mason v. Roll, 130 Ind. 260, 29 4 Ind. App. 31, 34 N. E. 669. N. E. 1135; Simmons v. Beazel, 125 "' Galentine v. Wood, 137 Ind. 532, Ind. 362, 25 N. E. 344 ; Walker v. 35 N. E. 901 ; Webb v. Simpson, 105 Steele, 121 Ind. 436, 22 N. E. 142, 23 Ind. 327, 4 N. E. 900; Koons v. Mel- N. E. 271 ; Heller v. Clark, 103 Ind. lett, 121 Ind. 585, 23 N. E. 95, 7 L. R. 591, 3 N. E. 844; Harrison Nat. A. 231n; Rinehart v. Vail, 103 Ind. Bank v. Culbertson, 147 Ind. 611, 45 159, 2 N. E. 330; Harrison Nat. Bank N. E. 657, 47 N. E. 13; Merritt v. v. Culbertson, 147 Ind. 611, 45 N. E. Straw, 6 Ind. App. 360, 33 N. E. 657. 657. 47 N. E. 13. •"Wright v. Manns, 111 Ind. 422, 433 APPEALS IN PROBATE MATTERS. 737 such appeal to be granted, on the fihng of such bond within one year after such decision.'"'* And with the exception of the ex- ecutor or administrator any one desiring an appeal must pray the same and give the bond required by this statute. '° And it has been said that where an appeal bond is a necessary step in perfecting an appeal, its absence is sufficient ground for dismissing the appeal.'^ It was held that the above statute, as to the filing of a bond, was mandatory, a step imperatively required, and constituting a necessar}' part of the appeal; and where it appeared that no bond had been filed the appeal would be dismissed.'^ This doc- trine, however, seems to be out of harmonj^ with that of some of the earlier cases, in which it was held that the bond being for the benefit and protection of the appellee, it might be waived,'^ and that where a case has been submitted by agreement it is too late to object that no appeal bond has been filed by the appellant.^'* The time for filing the bond begins to run from the date of the entry of the final action of the court in the particular matter •^ Burns' R. S. 1908, § 2978. This statute is mandatory, and under them an appeal bond must be filed, except where the administrator ap- peals, within ten days from the date of the decision, unless, for good cause shown, the Supreme Court shall direct such appeal to be granted, on the filing of a bond, within one year; otherwise the appeal will be dismissed. Rinehart v. Vail, 103 Ind. 159, 2 N. E. 330; Merryman v. Dif- fenbaugh (Ind. App.), 38 N. E. 72. ™ Berry v. Berry, 22 Ind. 275 ; Sta- ley V. Dorset, 11 Ind. 367. The ap- peal bond shall be filed within ten days after the decision complained of is made. The fact that the appel- lant files his bond within the ten days will not limit the time for filing the transcript. See Rinehart v. Vail, 103 Ind. 159, 2 N. E. 330; Simons v. Simons, 129 Ind. 248, 28 N. E. 702. ''Ten Brook v. Maxwell, 5 Ind. App. 353, 32 N. E. 106; Law v. Nel- son, 14 Col. 409, 24 Pac. 2; Mc- Lane v. Russell, 29 Tex. 127; Clinton V. PhiUips, 7 T. B. Mon. (Ky.) 117; Thompson v. Thompson, 24 Wis. 515; French v. Snell, Zl Me. 100; King V. McCann, 25 Ala. 471. "Ten Brook v. Maxwell, 5 Ind. App. 353, 32 N. E. 106; Rinehart v. Vail, 103 Ind. 159, 2 N. E. 330; Webb V. Simpson, 105 Ind. 327, 4 N. E. 900. "Pedrick v. Post, 85 Ind. 255; West V. Cavins, 74 Ind. 265; Gilbert V. Welsch, 75 Ind. 557. But see Sew- ard V. Clark, 67 Ind. 289; Bell v. Mousset, 71 Ind. 347; Critchell v. Brown, 72 Ind. 539. '* Post V. Pedrick, 85 Ind. 255 ; West V. Cavins, 74 Ind. 265. 47 — Pro. Law. 738 INDIANA PROBATE LAW. § 433 appealed from.'^ An appeal cannot be taken, except upon leave of the appellate tribunal,'*' without the filing of an appeal bond and the transcript within the time prescribed in the statute.^' Where the judgment is against an executor or administrator for wasting or converting the assets of the estate, in an appeal by him from such judgment he must file a bond, as such appeal is not in the interest of the estate. The right of appeal without bond is given to the executor or administrator in a representative capacity with a view of protecting the estate. When the interest of the administrator is adverse to the estate he represents a bond should not be dispensed with.'^ While the statute contemplates the filing of an appeal bond within ten days after the decision complained of is rendered, yet the appellant failing to file the bond within the time specified, may, upon showing to the court to which the appeal is prayed, that such failure was for good reason and without his fault or negligence, be permitted, in the discretion of the court, to file his bond within a year from the decision complained of.'^ Where such appeal has not been taken within the time limited by this section of the statute, and application is afterwards made to the Supreme Court for leave to appeal, the adverse party is entitled to notice of such application; but if leave has been granted without such notice and the parties are all brought into court, the matter is res adjudicata, and a motion to dismiss the appeal should be overruled.^" A second motion to dismiss an appeal will not be entertained although the ruling on the first motion was erroneous. ^^ "^ Galentine v. Brubaker, 147 Ind. " Case v. Nelson, 22 Ind. App. 22, 458, 46 N. E. 903. 52 X. E. 176. '" § 434, post. " Burns' R. S. 1908, § 2978. "Lindley v. Darnoll, 24 Ind. App. ""Duncan v. Gainey, 108 Ind. 579, 399, 56 N. E. 861; Vail v. Page, — 9 X. E. 470; Browning v. McCrack- Ind. — 93 N. E. 705; Jeffries v. en, 97 Ind. 279. Orndorf , 44 Ind. App. 225, 88 N. E. "" Walker v. Heller, 104 Ind. 327, 3 958; Harrison Nat. Bank v. Culbert- X. E. 114. son, 147 Ind. 611, 45 N. E. 657, 47 N. E. 13. § 434 APPEALS IN PROBATE MATTERS. 739 § 434. Right of appeal without bond. — Executors, admin- istrators and guardians may have an appeal and stay of pro- ceedings in the court below without giving an appeal bond.^- In any appeal prayed for by an executor or administrator from the decision of any court, or judge thereof in vacation, it shall not be necessaiy for such person to file an appeal bond.*^ These sections of the statute expressly authorize executors and administrators to appeal without filing a bond. As is said in one case; "The theory of our system is not to require admin- istrators to assume personal responsibility in such cases; other- wise many meritorious cases would remain unprosecuted, as the mere duty of an administrator would scarcely induce him to assume such liability, * * * and in appeals by such persons no bond shall be required, though the appeal is taken from a decision in favor of the estate. Thus construed the statute adapts itself to all cases and enables all persons acting in a fiduciary capacity to appeal upon the same terms."*'* And where others have been unnecessarily made parties appellant with an executor or administrator, such appeal, on the part of the ex- ecutor or administrator, cannot be dismissed for a failure of these third parties to file an appeal bond.*^ Section 687, Burns' R. S. 1908, above set out applies to appeals by executors and administrators in actions governed by the code of *" Burns' R. S. 1908, § 687. on his appeal, in the Supreme Court, '^ Burns' R. S. 1908, § 298. By the at the latest, within twenty (now one statutes in force March 11, 1881, an hundred) days after such decision administrator might appeal to the was made, unless, "for good cause Supreme Court from the allowance shown," such time has been extend- of a claim without bond, and file the ed by the Supreme Court. Other- transcript within one year. Jones v. wise a motion to dismiss the appeal Jones, 91 Ind. 378. Where an ad- must be sustained. Yearley v. ministrator considers himself ag- Sharp, 96 Ind. 469; McCurdy v. grieved by a decision of a circuit Love, 97 Ind. 62; Miller v. Carmi- court, or judge thereof in vacation, chael. 98 Ind. 236; Heller v. Clark, growing out of any matter connected 103 Ind. 591, 3 N. E. 844. with a decedent's estate, and prose- "Davis v. Huston, 84 Ind. 272; cutes an appeal from such decision Bake v. Smiley, 84 Ind. 212; Ruch v. to the Supreme Court, he is not re- Biery, 110 Ind. 444, 11 N. E. 312. quired to file any appeal bond; but he '"Ruch v. Biery, 110 Ind. 444, 11 must file a transcript of the record, N. E. 312; Pate v. Moore, 19 Ind. 20. 740 INDIANA PROBATE LAW. § 435 civil procedure, and it has been intimated, though not decided, that in term time in appeals taken by them in such actions a bond should be filed and the failure to file a bond as required by § 679, Burns' R. S. 1908, would render such appeal merely a vacation appeal.*" As to the right of appeal without bond one eminent author says: "The party appealing is always required to give bond, except in cases where the executor or administrator appeals in the interest of the estate and has given security on his admin- istration bond. An executor is entitled to appeal without surety where the judgment or decree is to affect only the assets of the estate, because the appeal bond would bind him personally and tend to render him liable beyond the assets, and because he has already given a general bond; but where he is in a situation in which a personal judgment or decree can be rendered against him which may make him liable out of his own funds, he is no more entitled to appeal without surety than any other person."" For this reason an executor or administrator may appeal with- out bond only in those cases where the appeal is in the interest of the estate he represents.** § 435. Review of judgment. — A complaint to review the proceedings and judgment upon a claim against a decedent's estate is not authorized by statute in this state. The court says, in McCurdy v. Love, 97 Ind. 62 : "The statute regulating the settlement of decedents' estates contains no provision author- izing the filing of a complaint for the review of any decision growing out of any matter connected with such an estate in the court where such decision was made or rendered ; but the only statutory remedy of the party aggrieved by any decision in such a cause or matter, is an appeal to the Supreme Court." And as to whether the provision of the civil code in relation to the review of judgments in civil actions can be held applicable to *^Stults V. Gibler, 146 Ind. 501, 45 *' Woerner Am. Law Admin., N. E. 340; Holderman v. Wood, 34 § 546. Ind. App. 519, IZ N. E. 199. ^ Case v. Nelson, 22 Ind. App. 22, 52 N. E. 176. § 435 APPEALS IN PROBATE MATTERS. 741 orders and judgments made and rendered in matters connected with a decedent's estate, the court, in the same case, say: "A complaint for the review of any judgment or decision of a circuit court, growing out of any matter connected with decedents' estates, is not authorized by the statute regulating the settlement of such estates, and the provisions of the civil code, for the review of judgments in civil actions, cannot be held applicable to such cases. Any other conclusion than this upon the point under consideration, would render nugatory and practically annul the limitations and restrictions imposed by the statute upon ap- peals to this court from the judgment or decision of a circuit court, or judge thereof in vacation, "growing out of any matter connected with a decedent's estate." For while such appeals must be perfected at the latest, under the statute, within twenty (now one hundred) days after the decision complained of is made, a complaint for the review of a judgment in a civil action for error of law appearing therein, may be filed under the civil code at any time within one year after the rendition of the judg- ment."^^ '"Zimmerman v. Love, 97 Ind. 602. CHAPTER XXI. LIABILITY OF ESTATES FOR TAXES. § 436. Liability for decedent's taxes. § 441. Payment of taxes. 437. Where should be assessed, etc. 442. When taxes should be paid. 438. Estates in hands of guardians, 443. Sale of property for taxes. etc. 444. Redemption from sale. 439. Location of the property. 445. Proceedings when purchaser 440. Statement, interrogatories, etc. dit<;, § 436. Liability for decedent's taxes. — The property of a decedent in the hands of his executor or administrator is liable for all taxes which have accrued against it during the lifetime of the decedent, and also for all taxes whicli may be assessed or levied upon the personal estate in his hands during the administration of the estate. Such taxes are a charge to be paid out of the personal property in the hands of the executor or administrator.^ All taxes against the real estate of a decedent which have ac- crued prior to his death must be paid by his executor or adminis- trator;' but taxes accruing against the real estate after the death of the owner must be paid by the heirs or devisees.^ The assess- ment, levy, and collection of a decedent's taxes against his execu- tor or administrator relate back to the death of such decedent, when for such purposes title is said to vest in such officer.* Taxes are not such claims as the law requires to be filed against the estate of the decedent. They are grouped with funeral ex- penses and expenses of administration as charges to be paid in due course of administration. ° If taxes have been assessed against ' § 291, ante. * Sommers v. Boyd, 48 Ohio St. = Ring 'v. Ewing, 47 Ind. 246; Hen- 648, 29 N. E. 497. derson v. Whitinger, 56 Ind. 131. "Graham v. Russell, 152 Ind. 186, "Wilson V. White, 133 Ind. 614, 33 52 X. E. 806; Hildebrand v. Kinney, N. E. 361, 19 L. R. A. 581. 172 Ind. 447. 87 X. E. 832. 742 437 LIABILITY OF ESTATES FOR TAXES. 743 property in the hands of an executor or administrator prior to final settlement of the estate, and are not due at the time of such settlement such officer, to escape personal liability for such taxes, should retain in his hands, at the time of distribution, assets enough of the estate to pay such taxes as they become due.'' Property not listed for taxation by the owner in his lifetime, may be listed and assessed against his estate after his death as "omitted property," and notice of such proceeding ser^^ed upon his executor or administrator is sufficient.' The official residence of an executor or administrator, so far as the taxation and administration of the assets in his possession are concerned, is in the county where his letters were issued.' § 437. Where should be assessed, when and how.— Per- sonal property, in general, is assessed where its owner resides. But the situs of such property, for the purpose of taxation, does ' Williams V. Holden, 4 Wend. (N. istence or authority outside of said Y.) 223; Austen v. Varian, 16 App. county, except as he drew it from the Div (N Y) 337, 44 N. Y. S. 599; court of his appointment. In contem- State V Jones 39 N. J. L. 650. In this plation of law, he is ever present and case the court savs : officially resident in the Manon Cir- "It is ur-ed that the executors cuit Court during the pendency of his have settled" the estate, and, there- trust, and required, without notice, fore can have no money with which other than presentation, to answer to to p'ay the taxes. That the testator every sort of claim or demand, with- has omitted to provide, or the execu- in the jurisdiction of the court, as- tors have neglected to retain, the funds for paying taxes on the se- curities of the estate, is hardly an adequate answer to the claim that taxes should be levied and collected. If the beneficiaries under this bond will not themselves advance the tax- serted against the assets in his hands for administration. He is an officer of the circuit court of Marion county, in possession of property located in and subject to taxation within the taxing district of said county, and while present in the county, engaged will not tneillSClvcs a^vai.^v. ...v. .."- wn. v. i, „Ar^;-r,;c es the executors must resort to their in exercising his office and admmis- lawful means for obtaining what they tering his trust, invokmg the aid of ^^„ the law, and subject to its mandates, "'^Gallup V. Schmidt, 154 Ind. 196, he was in his official capacity such a 56 N E 443 resident of Marion county as comes "Gallup V ^Schmidt, 154 Ind. 196, 56 within the purview of § 8560, and N F 443 In this case the court says, amenable to our taxation laws so far on pa-e 201: "As a trustee of the as they affect his trust, in the same propertv. he had his creation by the manner as if his personal residence Marion Circuit Court, and had no ex- had been in the county. 744 INDIANA PROBATE LAW. § 437 not always or necessarily follow the domicile of the owner." It is provided that personal property of non-residents of the state shall be assessed to the owner or to the person having the control thereof in the township, town, or city where the same may be. except that where such property is in transit to some place within the state, it shall be assessed in such place. ^^ Therefore if per- sonal property is used in business in this state it should be assessed here even though the owner may reside elsewhere. ^^ Personal property shall be listed for taxation between the first day of March and the fifteenth day of May of each year. But the ownership, quantity and quality of such property shall be fixed as of the first day of March in the year for which it is listed.'^ The lioklcr of the legal title shall for the purposes of taxation be taken to be the owner of the property. ^^ And the person pur- chasing or acquiring property, whether real or personal, on the first day of March in any year, shall be considered as the owner on that day, and shall be assessed and liable for the taxes of that year.^* Taxes become a lien against and attach to real estate on the first day of ]\Iarch annually and shall continue for ten years. ^° If a person die after the first of ]\Iarch in any year without having given in the amount of his taxables, his executor or ad- ministrator, heir at law, or person having charge thereof, shall give in the same as though such property had been in his posses- sion on the first day of ]\Iarch of such year.^*"' The personal property of a deceased person shall be listed by his executor or administrator, in his name as such executor or administrator; that of a person for whose benefit it is held in trust by the trustee; that of a minor, insane person or idiot, by his guardian, or if there be no guardian, then by the person hav- ing charge of such property: Provided. That the personal prop- "Eversole v. Cook, "^2 Ind. 222; '^Burns' R. S. 1908, Si 10157. Buck V. Miller, 147 Ind. 586, 45 N. E. ^"- Mullikin v. Reeves, 71 Ind. 281; 647. 47 X. E. 8, 62 Am. St. 436n, 37 Corr v. Martin, Zl Ind. App. 655, 11 L. R. A. 384. X. E. 870. " Burns' R. S. 1908, § 10160, CI. 4. =" Burns' R. S. 1908. § 10158. " Buck V. Miller, 147 Ind. 586, 45 " Acts 1909, p. 158. N. E. 647, 47 N. E. 8, 62 Am. St. ^'Burns' R. S. 1908, § 10159. 436n, Zl L. R. A. 384. § 437 LIABILITY OF ESTATES FOR TAXES. 745 erty of the decedent shall be listed in the township, town or city wherein the decedent resided at the time of his death." The personal property of the estates of deceased persons in the hands of executors, administrators, or other persons shall be as- sessed to the person in charge of such property in the township, town or city where the deceased last dwelt, until such property has been distributed to the heirs or other persons entitled thereto. If such decedent was a non-resident of the state, such property shall be assessed in the township, town or city where situated.'^ Property in the control of an executor, administrator, guard- ian or trustee, shall be assessed to such executor, administrator, guardian or trustee.'" This statute has reference to the assess- ment of real estate. Personal property of non-residents of the state in the posses- sion or control of any person or corporation as trustee, receiver, executor, administrator or guardian shall be assessed for state and county purposes only and in the county where the court is sit- uated by which such trustee, receiver, executor, administrator or guardian reports.-" Other personal property than that of non- residents which is in the possession of any person or corporation as trustee, receiver, executor, administrator or guardian shall be assessed for state and county purposes in the county where the court is situated by which said trustee, receiver, executor, ad- ministrator or guardian was appointed, or to which he reports.^^ Persons required to list property on behalf of others shall list it separately from their own, specifying in such case the name of the person, estate, etc., to whom it belongs." The undivided real estate of any deceased person not in con- trol of an executor or administrator may be listed to the heirs or devisees of such person without designating any of the heirs or devisees by name.^^ "■' R. S. 1881, § 6288. 647. 47 X. E. 8, 62 Am. St. 436n, 37 ^* Burns' R S. 1908, § 10160. CI. 6. L. R. A. 384. " Burns' R. S. 1908. § 10170. == Bums' R. S. 1908, § 10168. =° Burns' R. S. 190a § 10160, CI. 9. =^ Burns' R. S. 1908, § 10187; Jen- " Burns' R. S. 1908, § 10160. CI. 10: kins v. Rice, 84 Ind. 342. Buck V. Miller, 147 Ind. 586, 45 N. E. 746 INDIANA PROBATE LAW. § 438 § 438. Estates in the hands of guardians, etc. — Tlie per- sonal property of minors under guardian shall be assessed to the guardian in the township, town or city where the guardian re- sides, but shall not be assessed or taxed for city or town purposes unless the ward resides in such city or town, and the personal property of every other person under guardianship shall be as- sessed to the guardian in the township, town or city where the ward resides.** In all matters pertaining to the assessment and payment of taxes wards are represented by their guardians, and the ward is neither a necessary nor a proper party to an action brought by the county treasurer against the guardian to recover unpaid taxes. '^ Tlie guardian, however, is not liable personally for the payment of taxes assessed against the property of liis ward.-" It is the duty of a guardian to pay the taxes on the prop- erty of his ward out of money of the ward in his hands, and if he has no money he can sell real estate or personal property of the ward for that purpose.'" If the guardian should refuse or neglect to pay such taxes, or to take the necessary steps to secure money for their payment, he can be compelled to do so."'* Ever}' executor, administrator or guardian having the prop- erty of another in charge, who shall be put to any personal ex- pense in paying the taxes of the estate in his hands, by advancing the money therefor, shall be allowed the amount of the same with legal interest, up to the time that he is reimbursed from the funds of such estate, and such advancement shall be deemed in all courts a just charge against the estate of the person or persons for whose benefit the same was advanced.'* But where a guardian, who has funds belonging to his ward in his hands, fails to list the same for taxation as required by law, with intent to defraud the revenue, and afterwards such property is unlawfully assessed, and the taxes charged against " Burns' R. S. 1908, § 10160, CI. 5. " Ristine v. Johnson, 143 Ind. 44, "-•Vogel V. Vcgler. 78 Ind. 353; 41 X. E. 538, 42 N. E. 310. State V. Howard, 80 Ind. 466. "-' Burns' R. S. 1908, § 10340. =»Tousey v. Bell, 23 Ind. 423; Thie- =' Burns' R. S. 1908, § 10341. baud V. fait, 138 Ind. 238. 36 N. E. 525. § 439 LIABILITY OF ESTATES FOR TAXES. 747 it paid by such guardian, he is not entitled, on account of such illegahty in the assessment, to be reimbursed for such taxes or have them refunded to him.^" § 439. Location of the property.— The locus of the prop- erty of an estate remains the same as it was at and before the death of the testator or intestate, and cannot be made dependent upon the place of residence of the administrator, executor or trustee, so that for the purposes of taxation, the choses in action and other personal property of a decedent in the hands of an executor, administrator or trustee should be assessed as of the residence of the decedent at the time of his death, and not as of the residence of his i>ersonal representatives.^^ Real property shall be assessed in the place where situated, and to the owner, if known; if not, then to the occupant, if any; and if there be no occupant, then as unknown. Property in the control of an executor, administrator, guardian or trustee shall be as- sessed to such executor, administrator, guardian or trustee.^- W'hile it is the general rule of law that the domicile of the owner is the place where, by a legal fiction, his personal property is regarded as having its situs, and where it is to be taxed,^^ yet this rule is now departed from in most states, as to chattels hav- ing a permanent situs in a state other than that of the residence of the owner. ^* And the same departure has been taken in re- gard to notes and evidences of debt in the hands of an agent of the owner who resides in another state or countiy, which notes are taken for money loaned, and held for renewal or collection, with the view of reloaning the money by the agent in the same state, the business being permanent in the hands of the agent. ^^ ^ Howard County v. Armstrong, 91 " Herron v. Keeran, 59 Ind. 472, 26 Ind. 528. Am. Rep. 87. ^'McDougal V. Brazil, 83 Ind. 211. '* Rieman v. Shepard. 27 Ind. 288; In this case it was held that an an- Burroughs Taxation, 41. swer by an executor or administrator '^ Buck v. iMiller, 147 Ind. 586, 45 to a petition to compel the payment N. E. 647, 47 N. E. 8, 62 Am. St. of certain taxes assessed, that all 436n, 37 L. R. A. 384; Foresman v. such taxes due had been paid was Byrns, 68 Ind. 247; People v. Og- good and need not be verified. densburgh. 48 N. Y. 390 ; Burroughs " Burns' R. S. 1908, § 10170. Taxation, § 44. 748 INDIANA PROBATE LAW. § 44O So it will be seen that, for the puqx)ses of taxation, the situs of personal property does not always or necessarily follow the domi- cile of the owner, but if it is used in business in this state it will be assessed here even though the owner may reside elsewhere, and this is true of moneys and credits as well as of other fonns of personal property,^" because for the purposes of taxation the tenn personal property includes bonds, notes, choses in action and other evidences of credits. ^^ It does not militate against the power of the state to tax per- sonal property wliich has a definite and pemianent situs therein tliat another state, by reason of its jurisdiction over the owner or otherwise, is also exercising a like power.^® ,^ 440. Statement, interrogatories, etc. — Un the first day of March of each year, or as soon thereafter as practicable, and before the fifteenth day of May. the assessor shall call upon each person required to be assessed and furnish him or her with the proper blanks for the purpose, and thereupon such person shall make to such assessor a full and correct description of all tlie personal property * * * held, possessed or controlled by him as executor, administrator, guardian. * * * or in any representative or fiduciar}^ capacity, and he shall fix what he deems the true cash value thereof to each item of property for the guidance of such assessor, who shall determine and settle the value of each item, after examination of such statement, and also an examination under oath of the party or of any other person, if he deems it necessar}-.^'' To enable the assessor to reach property in hands of fiduci- aries, every person is required by law to answer under oath as "Eversole v. Cook., 92 Ind. 222; Exp. Co. v. Ohio State Auditor, 166 Buck V. Miller. 147 Ind. 586, 45 N. E. U. S. 185, 41 L. ed. 965, 17 Sup. Ct. 647. 47 N. E. 8, 62 Am. St. 436n, 11 604. L. R. A. 384; Pullman's Palace Car « Buck v. Beach, 164 Ind. Zl , 71 N. Co. V. Pennsylvania, 141 U. S. 18, 35 E. 963. 108 Am. St. 272 ; Coe v. Errol, L. ed. 613. 11 Sup. Ct. 876. 116 U. S. 517, 29 L. ed. 715, 6 Sup. ^'Desty Taxation, 388; Cooley Tax- Ct. 475; Judson Taxation. § 426. ation, 270 ; Boyd v. Selma, 96 Ala. 144, ^ Burns' R. S. 1908. § 10197. 11 So. 393, 16 L. R. A. 729n; Adams § 441 LIABILITY OF ESTATES FOR TAXES. 749 to whether, on the first day of March of the current year, he was the executor of the last will or the administrator of the estate of any deceased person, or guardian of the estate of any infant or person of unsound mind, or the trustee of the property of any person, and if so he is required to designate for whom he so acts and to name the court in which the estate is pending and to which he reports.**^ In arriving at the true valuation of property for the purposes of assessment and taxation the cash value of the property is its market or selling price at the place where the property is when assessed. If the property is of a kind that has no market value or selling price, then its actual value must be taken. *^ The owner is required to fix the values and if he does not they must be fixed by the assessing officer. Unless such officer fixes a different value he will be presumed to have adopted the value fixed by the owner. ■*= The assessment list, when completed, must be sworn to by the owner of the property."*^ § 441. Payment of taxes.— In the order of the payment of the debts of a decedent, taxes accrued against his estate are made claims of the fourth class. The statute provides, "taxes accrued upon the real and personal estate of the decedent at his death, and taxes assessed upon the personal estate during the course of the administration" shall be paid after the payment of the ex- penses of the administration, funeral of the deceased, and of his last sickness.** Under this statute all taxes, which have accrued against a per- son prior to his death, on both real and personal property, be- came a personal charge against him as well as a lien upon the property, and should be paid by the executor or administrator of the estate after his death for the reason that they are proper debts against the estate. The executor or administrator of a decedent's *• Burns' R. S. 1908, § 10198. « State v. Reynolds, 108 Ind. 353, 9 *" Willis V. Crowder, 134 Ind. 515, N. E. 287. 34 y. E. 315. " Burns' R. S. 1908, § 2901. Also ^'DuBois .. Lake Count>-, 4 Ind. ante, §"291. App. 138, 30 X. E. 206. 750 INDIANA PROBATE LAW. § 441 estate is also liable for the taxes which are assessed against the personal property of such decedent during the course of the ad- ministration of the estate; but as the land descends directly to the heir, the executor or the administrator will not be liable for taxes which accrue upon such real estate after the descent is cast. It is not his duty to pay such taxes, but the duty of the heir." The personal property of a decedent, in the hands of his execu- tor or administrator, is liable for all accrued and delincjuent taxes against such decedent's estate, both real and personal; and such personal proi)erty may be lawfully seized by the county treasurer to satisfy the delinquent taxes. Such treasurer is not compelled to file a claim against the estate for such taxes."*" But in the absence of some statutory provision authorizing such a proceeding, the private property of an executor or admin- istrator, or guardian, cannot l^e taken or held liable for taxes accruing against him in his fiduciary capacity.*^ However, if any such person should pay such taxes out of his own private means, the statute provides for his reimbursement from the estate in his hands. It reads : "Every executor, ad- ministrator, guardian, trustee, receiver, or person having the property of another in charge, who shall be put to any personal expense in paying the taxes of the estate of such decedent, ward "Henderson v. Whitinger, 56 Ind. but the purchaser takes them subject 131. In this cause, the court says : to liens, unless they are sold to pay "Where taxes have accrued upon the the liens, which does not appear in land of a person before his death, this case." Martin v. Beasley, 49 Ind. they become a personal charge against 280. him, as well as a lien upon the prop- *^ Ring v. Ewing, 47 Ind. 246. In erty, and it seems to us that such this case it was held that the county taxes should be paid by the executor treasurer might lawfully levy on the or administrator, because they are personal estate of the decedent in the debts against the estate. But we are hands of the executor, to satisfy not aware of any statute which makes taxes against the real estate that had it the duty of an executor or admin- become delinquent, and that he was istrator to pay taxes on land accruing not bound to proceed against the ben- after the death of the testator or in- eficiaries, or to file a claim against testate. The lands descend directly the estate for such unpaid taxes, to the heir, who should pay the taxes Catterlin v. Douglass, 17 Ind. 213. accruing after the descent is cast. " Tousey v. Bell, 23 Ind. 423. The administrator may sell the lands, g 442 LIABILITY OF ESTATES FOR TAXES. 75 1 or Other person, by advancing the money therefor, shall be al- lowed the amount of the same, with legal interest up to the time he is reimbursed from the funds of such estate; and such ad- vancement shall be deemed, in all courts, a just charge against the estate of the person or persons for whose benefit the same was advanced."*^ § 442. When taxes should be paid. — Any person charged with taxes on the tax duplicate in the hands of a county treasurer may pay the full amount of such taxes on or before the first Monday in May, or may, at his option, pay the first instalment at such time, and the remaining instalment on or before the first Monday of the following November.*^ The statutes further provide in relation to the collection of taxes accruing and unpaid that, "it shall be the duty of every ex- ecutor, administrator, guardian, receiver, trustee, or persons hav- ing the property of any decedent, infant, idiot, or insane person in charge to pay the taxes due upon the property of such decedent, ward or party."^" In case of neglect to pay any instalment of taxes when due, when there is enough money on hand to pay the same, the county treasurer shall present to the circuit or other proper court of the county at its next term thereafter, a brief statement in writing signed by him as such county treasurer, set- ting the facts and amount of such delinquency; and such court shall at once issue an order directed to such delinquent, com- manding him to show cause, within five days thereafter, why such taxes, penalty and costs should not be paid ; and upon failure to show good and sufficient cause for such non-payment, the court shall order him to pay such taxes out of the assets in his hands *' Burns' R. S. 1908, § 1034L thereon to be paid over to A to be *" Burns' R. S. 1908, § 10321. used and enjoyed by her as her ab- =* Wilson V. White, 133 Ind. 614, 33 solute property, and at her death the X. E. 361, 19 L. R. A. 581. In $3,000 with any interest not paid over, this case it was held that where to remain in the testator's estate for by the terms of a will, the title, distribution, the will failing to make a certain $3,000, was vested in any provision for the payment of the executor in trust for A during taxes on the $3,000 trust fund, the her natural life, the same to be taxes accruing thereon are to be paid loaned, and the interest accruing out of the general funds of the estate. 752 INDIANA PROBATE LAW. § 443 belonging to the estate of said decedent, ward or other person. Such dehnquent shall not be entitled to any credit in any settle- ment of said trust, for the penalty, interest and costs occasioned by such delinquency, or by the order to show cause, but the same shall be a personal charge against him, and he shall be liable on his official bond for such penalty, interest and costs. "^* This statute requires the county treasurer to set forth the facts relative to such delinquency in his written statement, and while the proceeding is not, strictly speaking, a civil action, yet the statute does not, even by implication, deprive the adverse party of the right to test the sufficiency of such statement of facts by a demurrer thereto. °" In such a proceeding brought against a guardian his ward is not a proper party, and a complaint against such ward is bad on demurrer.'"^ § 443. Sale of property for taxes. — Nothing herein con- tained shall prevent the county treasurer from levying upon and selling the property of the estate of any decedent, ward or per- son whose property is held in trust by another, for the payment of any delinquent taxes, in the same manner as other property is sold to pay delinquent taxes. The remedy given to county treasurers by the provisions of this act shall be regarded as only cumulative; but every person holding property, either as executor, administrator, guardian, or in any other representative or fidu- ciary capacity, who shall neglect or refuse to pay the taxes listed and due thereon, shall be liable in an action to the heirs of such decedent, or to such ward, or cestui que trust, for any damages sustained by such neglect or refusal.^* Where land has been sold at tax sale for delinquent taxes '^ Burns' R. S. 1908, § 10340. An groundless. Saint v. Welsh, 141 Ind. administrator in an action to resist 382, 40 N. E. 903. the collection of taxes upon property " Lang v. Clapp, 103 Ind. 17, 2 X. omitted from the tax duplicate by E. 197. his decedent, stands in the stead of "State v. Howard, 80 Ind. 466; such decedent, and the burden of Vogel v. Vogler, 78 Ind. 353 ; Ray v. proof is upon him to show that the McGinnis, 81 Ind. 451. claim asserted by the assessor is ''^ Burns' R. S. 1908, § 10342. § 444 LIABILITY OF ESTATES FOR TAXES. 753 thereon, and a tax deed executed therefor, and such deed proves ineffectual to pass the title to such land, the personal representa- tives of the deceased grantee would have no right to such deed, but it would belong to the heirs of such grantee as if it were valid and effectual; and an action brought against the owner of the land to recover the amount to which the grantee in such invalid deed is entitled, and to obtain a sale of the land for the payment of delinquent taxes so paid, must be brought after the death of the grantee by his heirs or assigns, and not by his executor or administrator.^^ Crops raised on the lands of a decedent, after his death, by his heirs, cannot be sold for the taxes due from the decedent.^® § 444. Redemption from sale. — The owner or occupant of any land sold for taxes, or any other person having an interest therein, may redeem the same at any time during the two years next ensuing from the date of the sale.^' Infants, idiots and insane persons may redeem any lands be- longing to them, sold for taxes, within two years after the expi- ration of such disability, in the same manner as provided for re- demption by other persons.^* This section does not, however, prevent the execution of a deed to the purchaser before the removal of such disability.^^ It is in- tended that the persons named in the statute shall have the privi- lege, within the time mentioned, to redeem from such sale on the ^ Stephenson v. Martin, 84 Ind. 160. "" Lancaster v. Du Hadway, 97 Ind. ""Gregory v. Wilson, 52 Ind. 233. 565. In this case the court says: "This crop of corn was wholly grown 'The right to redeem may be exer- and produced after the death of the cised by such persons after the execu- deceased, and while the widow and tion of a deed, and as the statute re- son of the deceased were, by their quires the auditor to make a deed tenants, in possession of the land on for all lands after the expiration of which it was raised, and nominally, two years from the sale, the mere at least, the owners thereof; and we fact that some persons may thereafter do not think it ever was the property redeem does not deprive the auditor of the deceased or liable for the pay- of the power to make a deed. The ment of the taxes for the years prior statute applies alike to all sales, and to 1873, charged against him." makes no other provision for the con- " Burns' R. S. 1908, § 10366. veyance of lands owned by persons "Burns' R. S. 1908, § 10367. under disabilities." 48— Pro. Law. 754 INDIANA PROBATE LAW. § 445 same tenns and conditions as other persons were allowed to re- deem before the expiration of the two years.*^" § 445. Proceedings when purchaser dies. — In all cases of sale of lands for taxes, if the purchaser or his assigns shall die before a deed shall be executed on such sale, the deed may be exe- cuted by the auditor to and in the name of the deceased person, if such deceased person being still alive, would be entitled to a deed, or to his heirs at law or devisees ; which deed shall vest the title in the heirs or devisees of such deceased person in the same manner and liable to like claims of creditors and other persons as if the same had been executed to such deceased person immedi- ately previous to his death (or the executor or administrator may assign the certificate of purchase, and the deed may issue to the assignee thereof), and in like cases which have heretofore oc- curred, the same rule shall apply, and all deeds heretofore issued in the name of any deceased person who. if living at the time of the execution thereof, would have been entitled thereto, shall have like effect as above provided.®^ ~ Schissel V. Dickson, 129 Ind. 139, " Burns' R. S. 1908, § 10391. 28 N. E. 540; Ethel v. Batchelder, 90 Ind. 520. CHAPTER XXII. SURVIVING PARTNERS. 446. The partnership dissolved by death. 447. Rights of the surviving part- ner. 448. The liabilities and powers of a surviving partner. 449. Right to make assignment for the benefit of creditors. 450. As against personal repre- sentative of deceased part- ner. 451. Rights of the personal repre- sentative. 452. The survivor's power of dis- position. 453. Survivor's right to purchase. 454. Effect on partnership real estate. § 455. Right of partnership creditors. 456. Actions by and against surviv- ing partner. 457. As to heirs of a deceased partner. 458. Statutory administration. 459. Required to file inventory and appraisement. 460. Must file list of liabilities, affi- davits, etc. 461. Bond and sureties. 462. Settlement and distribution. 463. Compensation to the surviv- ing partner. 464. When receiver may be ap- pointed. § 446. The partnership dissolved by death. — The death of one member of a partnership operates as a dissolution of the firm.^ This is the true rule, though it may be changed by the ar- ticles of co-partnership, or by some other agreement among the partners.- And yet the true legal effect of such agreements stipu- lating against a dissolution by the death of a partner, is rather to create a new partnership on the instant the old one ceases. For * Johnson v. Wilcox, 25 Ind. 182; Skillen v. Jones. 44 Ind. 136; Lind- ley Partnerships, 1033; Parsons Part- nerships, 440; Story, Partnerships, § 346; Knapp v. McBride, 7 Ala. 19; Hoard v. Clum, 31 Minn. 186, 17 N. W. 275 ; Jenness v. Carleton, 40 Mich. 343. - Laughlin v. Lorenz, 48 Pa. St. 275, 86 Am. Dec. 592n; Edwards v. Thomas, 66 Mo. 468; Espy v. Comer, 76 Ala. 501. /5D 756 INDIANA PROBATE LAW. § 446 by no legal fiction or possibility can the dead partner be contin- ued as a member of the firm.^ Where there is no agreement among the partners as to the continuation of the firm upon the death of a partner, neither the executor of a deceased partner nor his administrator, have any right to become partners with the survivors, nor in any manner to interfere with the partnership business, except in the matter of a final accounting.* A deceased partner may, by his will, direct the continuance of the partnership after his death, but in legal effect it amounts rather to the creation of a new partnership, with his estate as a member; and he may by the will, limit the liability of his estate for debts accruing after his death, to the amount of his actual interest in the fimi at the time of his death. '^ The con- tinuation of the partnership after a partner's death, in pursuance of directions in his will, creates a new partnership of which the survivors and the executor of the deceased partner are the mem- bers; and the creditors of the new firm have no claim upon the general assets of the estate of the deceased partner, but are lim- ited to such assets as the will directs to be employed in the new firm." It is usually left to the option of the executor, in such a case, to accept the duty thus imposed by the will, for the reason that Mvennedy v. Porter, 109 N. Y. 29 X. W. 867; Valentine v. Wysor, 526, 17 N. E. 426. 123 Ind. 47, 23 N. E. 1076, 7 L. R. A. * Collier on Part., § 623; Miller v. 788n. Jones, 39 111. 54; Robertson v. Bur- 'Story on Part., § 319; Burwell v. rell, 110 Cal. 568, 42 Pac. 1086; Garwood, 2 How. (U. S.) 560. 11 L. Gwynne v. Estes, 14 Lea (Tenn.) 662. cd. 378. Where the provision in the The administrator has nothing to do partnership article is simply that the with the deceased's interest in the deceased partner's capital shall re- firm except to see that no waste or main in the business, the executor is fraud is committed in its manage- not admitted into the management of ment. Not until the survivor has the business. Wild v. Davenport, 48 paid off the firm's debts, settled up X. J. L. 129, 7 Atl. 295, 57 Am. Rep. the partnership, and turned over the 552n ; hence the executor of the de- proportionate share to the administra- ceased partner cannot, in such case, tor of the deceased partner, does the be sued as a member of a new firm, liability of the latter for such share Stewart v. Robinson, 115 X^. Y. 328, and its management commence. 22 N. E. 160, 163, 5 L. R. A. 410n. Loomis V. Armstrong, 63 ]Mich. 355, ' Pitkin v. Pitkin, 7 Conn. 307, 18 § 44^ SUR\^VIXG PARTNERS. 757 while the business is to be carried on by him for the benefit of the heirs or legatees of the deceased partner, yet in this new firm the executor pledges his own responsibility/ But the executor does not become personally liable for debts contracted by the firm during the lifetime of the deceased.® If the executor should, however, decide to carry out the will by continuing the partnership business, the law imposes upon him the duty of conducting it in the same manner in which his testator conducted it, and the general rule that if an executor sell on credit he must take security, does not apply to sales made in such part- nership business.^ While it is probable, under the general equity powers vested in our probate courts, that they might, upon a proper showing seem- ing to justify it in the interests of the estate, order an adminis- trator to continue for a time in the business of a firm of which his decedent was a member, ^° it is a power which seems to the writer should be exercised very sparingly. It is a perilous one to exercise and one an administrator would better not assume if it can possibly be avoided, and never except in some rare and excep- Am. Rep. Ill; Wilcox v. Derickson, their commission. Ex parte Richard- 168 Pa. St. 331, 31 Atl. 1080; Vincent son. Buck's Cas. in Bankr., 202, 209. V. Martin, 79 Ala. 540. Lord Eldon says (referring to an '2 Collier on Part., §§ 621, 622; executor carrying on the partnership Edgar v. Cook, 4 Ala. 588; Barry v. business under direction of the will) Folkes, 60 Miss. 576; Buckingham v. that "the case of the executor is Morrison, 136 111. 437, 27 N. E. 65. very hard. He becomes liable, as In Hart v. Anger, 38 La. Ann. 341, a personally responsible, to the extent clause in the partnership articles that of all his own property; also in his "in the event of the death of either of person, and as he may be proceeded the parties to this act, it is to be against as a bankrupt, though he is optional with the survivor whether but a trustee. But he places himself said co-partnership shall continue or in that situation by his own choice, not," was held not to be enforceable, judging for himself whether it is In England an executrix, who was fit and safe to enter into that situa- directed to carry on her testator's tion." partnership and exceeded her author- ' Mattison v. Famham, 44 Minn, ity by employing assets therein to 95, 46 N. W. 347. an extent not warranted by the will, "In re Cline's Appeal, 106 Pa. St. was allowed, upon her and the sur- 617. viving partner's bankruptcy, to prove " Powell v. North, 3 Ind. 392, 56 for the excess so employed under Am. Dec. 513n. 758 INDIANA PROBATE LAW. § 447 tional case. For, with the utmost care and caution on his part yet the interests of the beneficiaries of the estate may be jeopard- ized by the vicissitudes of the business, and the administrator be held personally liable for resulting losses. It will be seen from what has been said that whether a partner- ship is dissolved by the death of one of the partners is a question dependent upon the nature of the business in which the firm was engaged, or upon the contract of partnership, or upon the testa- mentary disposition which the deceased partner makes of his in- terest in the firm with the assent of the sui-viving partners. ^^ No notice of the dissolution of the fimi by the death of one of the partners is necessary to discharge the estate of such deceased member from liability for the subsequent debts and transactions of the firm.^- § 447. Rights of the surviving partner. — At common law, upon the dissolution of a partnership by the death of one of its members, the survivor alone had the legal right to the possession and disposition of the partnership property, and was alone liable to be sued, or entitled to sue, in respect of the debts owing by or to the finn." And this in the main is yet the law in this state. Upon the dissolution of a partnership by the death of a partner, the surviving partner becomes, by a species of succession, the owner, and entitled to the possession and control of all the prop- erty of the partnership, but not an owner in the full and absolute sense of the tenn, but as a trustee rather for the benefit of all concerned, and for the purpose of winding up the affairs of the partnership and distribution of the proceeds.^* " Needham V. Wright, 140 Ind. 190, 441; Roys v. Vilas, 18 Wis. 169; 39 N. E. 510; Schmidt v. Archer, 113 Hanna v. Wray, 11 Pa. St. 27. Ind. 365, 14 N. E. 543 ; Lindley Part- " Smith v. Walker, 38 Cal. 385, 99 nerships, 1044-231; Story Partner- Am. Dec. 415; Nelson v. Hayner, 66 ships. § 317. 111. 487; Brown v. Watson, 66 Mich. "Story Part., § 343; Collier Part., 223, ZZ N. W. 493; Strange v. Gra- il 24, 613; Price v. Mathews, 14 La. ham, 56 Ala. 614; Bush v. Clark, 127 Ann. 11; Dean v. Plunkett, 136 Mass. Mass. Ill; Adams v. Hackett, 27 N. 195. H. 289, 59 Am. Dec. Zld. In Need- "Daby v. Ericsson. 45 N. Y. 786; ham v. Wright, 140 Ind. 190, 39 N. E. Murray v. Mumford, 6 Cow. (N. Y.) 510, the court says: "Neither was the 447 SURVIVING PARTNERS. 759 Such survivor has the sole right to the possession, control and management of all the firm property for the purpose of closing out the firm business; and if there is more than one survivor, such right devolves upon all equally. ^^ The statute in this state in no wise changes the well-settled rule that a surviving partner is entitled to the exclusive possession and control of the assets of the firm, including choses in action, for the purpose of settling and closing up the business of the partner- ship; and until such settlement of the partnership business, the personal representatives of a deceased partner cannot claim or take any particular chattel or portion of the property or assets of the firm or otherwise assume any possession or control of such property or assets. In closing up the business of the firm, the surviving partner is, in legal contemplation, the only repre- sentative of the firm, and the joint estate vests in him.^** plea correct in concluding that on a dissolution of a partnership, whether by death or otherwise, the partners became tenants in common of the partnership property. It is true that in Stair v. Richardson, 108 Ind. 429 [9 N. E. 300], there is an inadver- tent expression to the eflfect that 'after dissolution former members are tenants in common.' The statement was unnecessary to the decision of that case. Surviving partners are rather joint tenants than tenants in common. They are trustees for the winding up of the affairs of the part- nership; and all of the property of the firm goes to the survivors pend- ing settlement." " Needham v. Wright, 140 Ind. 190, 39 N. E. 510; Farley v. Moog, 79 Ala. 148, 58 Am. Rep. 585; Heartt v. Walsh, 75 111. 200; Davis v. Sowell, n Ala. 262; Wilson v. Nicholson, 61 Ind. 241 ; Godfrey v. Templeton, 86 Tenn. 161. '• Needham v. Wright, 140 Ind. 190, 39 N. E. 510; Willson v. Nicholson, 61 Ind. 241 ; Anderson v. Ackerman, 88 Ind. 481 ; Skillen v. Jones, 44 Ind. 136; Cobble v. Tomlinson, SO Ind. 550. A surviving partner has the right to the control and possession of the propert}' of the firm, and may dispose of it in order to adjust the partnership accounts, and is only lia- ble to the representatives of the de- ceased partner for what remains in his hands after the partnership aflfairs are settled. Valentine v. Wysor, 123 Ind. 47, 23 N. E. 1076, 7 L. R. A. 788n. When a member of a partner- ship dies, the surviving partners hold the property and money of the part- nership in trust for the partnership creditors ; and where the surviving partners continue the business of the partnership in another firm name, and insure the property in such name, and pay the premiums thereon, any money realized on the insurance policy, as well as all other funds of the part- nership, belong to the cestui que trust, and primarily to the creditors of the firm; and, in such case, a receiver 760 INDIANA TROBATE LAW. § 447 And where there is more than one they arc, under the law merchant, joint tenants, and one cannot bind the other by accept- ing a bill or endorsing a note, etc., without the proper author- ity to do so." Should all the members of a firm die before a settlement of the partnership affairs is effected, the duty of closing up the business devolves upon the personal representative of the last sun^ivor.^* A surviving partner is regarded as a trustee primarily for the creditors of the fimi, and secondarily for the heirs or personal representatives of the deceased partner in all that remains, or fairly ought to remain after adjusting the partnership account. He cannot speculate upon the property which the law commits to his custody, solely for his own advantage, and if he makes profits out of the trust property, in the course of the adjustment of the affairs of the partnership, he is held to account to those interested for their share. ^^ A surviving partner is entitled to the custody and manage- ment of the assets of the partnership, unless it be shown that he is committing waste or othenvise mismanaging the aft'airs of the firm, and his liability to the heirs or representatives of the de- ceased partner is confined to what remains in his hands after ever)'thing connected with the partnership has been settled."" having been appointed, he is entitled 139; Nehrboss v. BHss, 88 N. Y. 600. to the possession and control of all A surviving partner is entitled to the the firm assets, including insurance custody and management of the as- moneys obtained by the surviving sets, unless it be shown that he is partners on a policy procured by committing waste, or otherwise mis- them, and including profits realized managing the afifairs of the firm, and in the continuance of the partnership is only liable to the heirs or repre- business. Bollenbacher v. First Nat. sentatives of the deceased partner Bank, 8 Ind. App. 12, 35 N. E. 403. for what remains after everything is " Needham v. Wright, 140 Ind. 190, settled up. Valentine v. Wysor, 123 39 N. E. 510; Jenness v. Carlton, 40 Ind. 47, 23 N. E. 1076, 7 L. R. A. Mich. 343; Murray v. Ayer, 16 R. I. 788n. 665, 19 Atl. 241. ^n^alentine v. Wysor, 123 Ind. 47, " Dayton v. Bardett, 3S Ohio St. 23 N. E. 1076, 7 L. R. A. 788n. 357; Brooks v. Brooks, 12 Heisk. =" Needham v. Wright. 140 Ind. 190, (Tenn.) 12; Costley v. Wilkerson, 49 39 N. E. 510; Harrah v. Davis, — Ind. Ala. 210; Whitney v. Cook, 5 Mass. App. — , 96 N. E. 41. § 448 SURVIVING PARTNERS. 76 1 In some of the cases a surviving partner is called a trustee, but he is not an ordinary trustee as that term is generally under- stood. He does not have possession and dominion over the part- nership assets by virtue of any statute or action of any court, but by reason of his own interest in the property and his rights and powers as a member of the firm. The statutes in reference to the settlement of partnership estates do not confer any of those rights upon him, but are mere limitations of his powers and for the protection of the funds arising from the partnership assets. A commingling of those funds with his individual funds is not a conversion as would be the case if he were only a trustee, since he has an ownership in and control over them aside from the trust by virtue of his connection as partner.-'" Our statutes made it the duty of the surviving members of a partnership to qualify and give bond, precisely the same as an executor or administrator. And when this is done the surviving partners become trustees for the benefit of the creditors of the firm.-^ If this is not done the creditors of the firm may resort to their common-law right and sue the partners personally for the indebtedness owing by the firm^ or in a proper case, they may re- sort to a suit in equity to compel the application of the partner- ship property to the payment of the partnership debts. For it is the law that the members of a partnership are personally, jointly and severally liable for all the indebtedness of the firm." § 448. The liabilities and powers of a surviving partner. — The surviving member or members of a partnership are author- ized to collect the assets of the firm, to receive and receipt for payments, to pay and settle partnership debts, to close out the partnership business, and after the payment of all debts to make a distribution of the net surplus of the firm's assets to those in law entitled to it.-* ^American Bonding Co. v. State, E. 67Z; Swing v. Hill, 44 Ind. App. 40 Ind. App. 559, 82 N. E. 548. 140, 88 N. E. 721. "Swing V. Hill, 44 Ind. App. 140, =' Heartt v. Walsh, 75 111. 200; 88 N. £."721. Gleason v. White, 34 Cal..258; Heath ''Dean v. Phillips, 17 Ind. 406; v. Waters, 40 Mich. 457; Offutt v. Ralston v. Moore, 105 Ind. 243, 4 N. Scott, 47 Ala. 104; Valentine v. Wy- 762 INDIANA PROBATE LAW. § 448 Such surviving partner has no power to sign tlie firm name to an obhgation for a pre-existing debt;-" but may draw checks against the firm's bank account, using tiie firm name in so doing and may use the firm name in the transfer of a note belonging to it, his indorsement not being operative against the firm, but being used only as a fonnal transfer of the title.^" The acts, admissions, and acknowledgments of a surviving partner are binding only so far as he has property of the finn in his hands." The survi\iiig i)ai tner has the legal right to the possession and the disix)sition of all the partnership property for the purpose of the payment of debts and of distribution. And for such purpose he may recover the partnership property even from the adminis- trator of the deceased partner.-^ The right of action to collect the debts and assets of a partnership where any of the partners are dead is vested by law exclusively in the surviving partner or partners.^* And while the right of action for liabilities due a partnership survive and vest exclusively in the surviving mem- bers of the firm, the liabilities of the partnership survive not only against the surviving partners, but also against the estate of the deceased partner.^" sor, 123 Ind. 47, 23 N. E. 1076. 7 L. =" Calvert v. Marlow, 18 Ala. 67; R. A. 788n; Hodgkins v. Merritt, 53 Dwinel v. Stone, 30 Me. 384; Hanna Me. 208; Berry v. Harris, 22 Md. 30, v. Wray, 11 Pa. St. 21 \ Valentine v. 85 Am. Dec. 639; Betts v. June, 51 N. Wysor, 123 Ind. 47, 23 N. E. 1076, 7 Y. 274. L. R. A. 788n ; Holland v. Fuller, 13 "Lang V. Waring, 17 Ala. 145; Ind. 195. Matteson v. Nathanson. 38 Mich. Zll ; '"■' Xeedham v. Wright, 140 Ind. 190, Citizens' Mut. Ins. Co. v. Ligon, 59 39 N. E. 510; Mcintosh v. Zaring, Miss. 305; Central Sav. Bank v. 150 Ind. 301, 49 N. E. 164; Newman Mead, 52 Mo. 546. v. Gates, 165 Ind. 171, 72 N. E. 638. -" Johnson v. Berlizheimer, 84 III. 54, '" Ralston v. Moore, 105 Ind. 243, 4 25 Am. Rep. 427; Bredow v. Mutual N. E. (ilZ; Newman v. Gates, 165 Ind. Sav. Inst.. 28 Mo. 181; Commercial 171, 72 N. E. 638; Camp v. Grant, 21 Nat. Bank- v. Proctor, 98 111. 558; Conn. 41. 54 Am. Dec. 321; Story Bank v. Vanderhorst, 32 N. Y. 553. Part., § 260. ""Rose v. Gunn, 79 Ala. 411; Ad- ams V. Ward, 26 Ark. 135. § 449 SURVIVING PARTNERS. 763 § 449. Right to make assignment for the benefit of cred- itors. — If the partnership is insolvent the survivors may make a general assignment for the benefit of the firm creditors.'' While this may be said to be the general rule, it is also held in some of the cases that such assignment cannot be made only with the consent of the personal representative of the deceased part- ner.'- But the validity of an assignment made without such con- sent, can only be attacked by such personal representative.'' However, the assent of all the surviving partners is necessary to a valid assignment.'* Such assignment cannot be made for the payment of the sepa- rate debt of the deceased partner," nor for debts of the firm contracted subsequent to such partner's death in a continuation of the firm business without authority." It is no ground of objec- tion that the assignment also includes the individual property of the surviving partners.'^ By statute in Indiana any surviving partner or partners doing business in this state shall have full power to make assignments of the partnership assets for the benefit of creditors.'^ "Salsbury v. Ellison, 7 Colo. 167, ^^ Moody v. Downs, 63 N. H.^SO; 303, 2 Pac. 906, 3 Pac. 485, 49 Am. Haynes v. Brooks, 116 N. Y. 487, 22 Rep 347; Williams v. Whedon, 109 N. X. E. 1083. Y. 333, 16 N. E. 365, 4 Am. St. 460; =^ Burns' R. S. 1908, §3328. In State Gable v Williams, 59 Md. 46 ; Patton v. Matthews, 129 Ind. 281, 28 N. E. V. Leftwich, 86 Va. 421, 10 S. E. 686, 703, the court says : "Our statute re- 19 \m St. 902, 6 L. R. A. 569n ; Emer- lating to the settlement of partner- son V Senter,' 118 U. S. 3, 30 L. ed. ships by the surviving partner does 49 6 Sup. Ct! 981 ; Shanks v. Klein, not change or afiFect his interest m or 104 U S 18 26 L. ed. 635. right of possession of the partner- *= Nelson v. Tenney, 36 Hun (N. ship assets, but that he is the legal Y) 3V- Barcroft v. Snodgrass, 1 owner of the assets (Wilson v. Nich- Coldvv" '(Tenn.) 430; Tiemann v. olson, 61 Ind. 241), and may make a Molliter 71 Mo. 512; Vosper v. Kra- voluntary assignment of the partner- mer 31 X J Fq 420. ship assets, or prefer one firm cred- « Williams v. Whedon, 109 N. Y. itor over the others by the execution 333 16 X E. 365, 4 Am. St. 460. of chattel mortgages." First Nat. « Egberts V. Wood, 3 Paige (N. Y.) Bank v. Parsons, 128 Ind. 147, 27 N. 5jg E. 486; Hadley v. Milligan, 100 Ind. » Hutchinson v. Smith, 7 Paige (N. 49; Willson v. Nicholson, 61 Ind. 24L yX 26 I" ^•'■^^ ^^^- -^^"^ ^' ^^'■^°"^' ^ -Tiemann v. Molliter, 71 Mo. 512. Ind. 147, 27 N. E. 486, it was held 764 INDIANA PROBATE LAW. § 449 And in the absence of any statute prohibiting it, a surviving partner has the same right and power to secure and prefer cred- itors as is possessed by individual debtors."'* With this purpose in view he may make a vaHd chattel mort- gage upon the partnership property to secure any one or more of the fimi creditors prior to making a general voluntary assign- ment.'" But where the surviving partners of a iirni form a new firm and continue the business with the assets of the old firm, an as- signment by them for the benefit of the creditors of the new firm will be invalid.''^ And an assignment by one or more of the sur- viving partners of a firm of his individual property for the bene- that a chattel mortgage executed by the surviving partner on the, partner- ship property w^as good against a gen- eral assignment, under the statute, of all such property for the benefit of all the firm creditors, made by the surviving partner afterwards. Such surviving partner may also make a preference of firm creditors by trans- ferring the partnership property to some third person in trust for certain of such creditors. Havens &c. Co. v. Harris, 140 Ind. 387, 39 N. E. 49; Harseim v. Booth, 134 Ind. 281, 33 N. E. 1016. '" Havens &c. Co. v. Harris, 140 Ind. 387, 39 N. E. 49; Hadley v. Milligan, 100 Ind. 49; First Nat. Bank v. Par- sons, 128 Ind. 147, 27 N. E. 486; Em- erson v. Senter, 118 U. S. 3, 30 L. ed. 49, 6 Sup. Ct. 981; Beste v. Burger, 110 N. Y. 644, 17 N. E. 734; Court- land &c. Co. v. First Nat. Bank, 141 Ind. 518, 40 N. E. 1070. Indi- vidual assignments by the surviv- ing members of a partnership for the benefit of the creditors do not affect their right to sue for the recovery of the firm assets. Need- ham v. Wright, 140 Ind. 190, 39 N. E. 510. The statute relating to the set- tlement of partnerships by the surviv- ing partner does not change or affect his interest in or right of possession of the partnership assets, and he may make a voluntary assignment of them, or prefer one firm creditor over the others by the executing of a chattel mortgage. State v. Matthews, 129 Ind. 281, 28 N. E. 703. '"Courtland &c. Co. v. First Nat. Bank, 141 Ind. 518, 40 N. E. 1070; First Nat. Bank v. Parsons, 128 Ind. 147, 27 N. E. 486; Hadley v. Milligan, 100 Ind. 49; State v. Matthews, 129 Ind. 281, 28 N. E. 703; Havens &c. Co. V. Harris, 140 Ind. 387, 39 N. E. 49. "Tiemann v. Mollitor, 71 Mo. 512. A surviving partner of an insolvent firm may make a valid chattel mort- gage of the partnership property to secure a firm debt. The statutes re- lating to the filing of inventories and appraisements by the surviving part- ner, do not forbid the making of such mortgage. First Nat. Bank v. Par- sons, 128 Ind. 147, 27 N. E. 486; Ha- vens &c. Co. V. Harris, 140 Ind. 387, 39 N. E. 49. 450 SURVIVING PARTNERS. 7^1 fit of his creditors does not have the effect of an assignment of the firm property, nor does it deprive the partnership of the right to the possession and control of the partnership assets."' It is only after the appointment of a receiver that the property of a firm and the settlement of the partnership is taken out of the control of the surviving partners. No assignee of any individual member of the firm has any right of possession or control over the firm property as against the surviving partners, or as against a receiver dulv appointed for such partnership." In the payment of the partnership debts the surviving partner is free to choose whom he will pay. He can apply all the assets of the firm to the payment of one debt or he can assign the prop- ertv for the benefit of all the creditors.** § 450. Right as against personal representative of deceased partner.— The personal representative of a deceased partner has no right to the control or possession of the property of the fii-m, nor to collect money due the partnership, and an action will lie against him by the surviving partner or partners to recover possession of property so appropriated, or to compel the payment of money collected by him."^ Such action, however is one against the executor or administrator personally and not in his repre- sentative capacity; the estate not being chargeable with his tort.*« -Xeedhamv. Wright, 140 Ind. 190, with the statute by such surviving 39 N. E. 510. partner. Hadley v. Milhgan, 100 Ind. " Needham V. Wright, 140 Ind. 190, 49. 39 N. E. 510. A surviving partner "American Bonding Co^ v. btate, may make a trust deed of the firm as- 40 Ind. App. 559 82 N. E. 548^ sets for the benefit of certain credi- "Smith v. Wood, ^1 Md 293 tors to the exclusion of others, with- Stearns v. Houghton 38 Vt. 583 Cal- out fifing an inventory or bond, as re- vert v. Marlow. « ^la ^^^ ^^^ J; quired. Havens &c. Co. v. Harris, Taylor, 36 Hun (N- J.) 256 Sh^lds 140 Ind. 387, 39 N. E. 49. Where a v. Fuller, 4 Wis. 102, 65 Am. Dec. surviving partner executed a mort- 293n. gage of the partnership assets to se- « Davis v^ Sowell, 77 Ala. 262 cure a firm liability, a complaint to Marlatt v. Scantland, 19 Ark. 443. foreclose the mortgage is sufficient, as To a suit on a promissory note exe- against an assignee appointed subse- cuted by a partnership m the firm quent to the execution of the mort- name, against the surviving partner gage without showing any compliance a plea in abatement is msufiicient 766 INDIANA PROBATE LAW. 45» Or where money has been paid by a debtor to the partnership to the administrator of the deceased partner, the remaining part- ner, if he so elect, can compel the debtor to pay it again to him.''^ Where the deceased partner is indebted to the firm, the relation of debtor and creditor, as between the surviving partner and the decedent's administrator, does not arise pending a settlement of the accounts, but when the balance due is ascertained, the sur- viving partner may prove it as a claim against the estate of the decedent.*^ It is the duty of the surviving partner to reduce the assets of the firm to money and apply the same, less expenses upon the partnership debts, and if any surplus remains, he should then ac- count for such surplus with the estate of the deceased partner. There will be no conversion arise until he fails at the proper time honestly to account for such surplus to the proper person or authority/" whicli alleges that the defendant and one R., as partners, executed the note in suit ; that afterward the defend- ant withdrew from the firm, leaving in R.'s hands ample means to pay all the firm debts, including the note; that afterward R. died, and the ad- ministration of his estate is still pend- ing: that there are ample means be- longing to the estate to pay the debts, including the note, which has never been presented to the administrator or filed against the estate, and that the administrator has not been made a party to the suit, wherefore the court has no jurisdiction. Ralston v. ]\Ioore, 105 Ind. 243, 4 N. E. 673. *' Calvert v. Marlow, 18 Ala. 67; Lockwood V. Mitchell, 7 Ohio St. 387, 70 Am. Dec. 78: Wallace v. Fitzsim- mons. 1 Dall. (U. S.) 248, 1 L. ed. 122. A complaint to set aside the set- tlement of a deceased partner's estate, so that the survivor can prosecute a claim against the estate for money paid on account of the partnership business, need not allege the particu- lar debts, amounts, and persons to whom paid, in exhausting the firm property, nor allege more particularly decedent's ownership of property. Harter v. Songer, 138 Ind. 161, 37 N. E. 595. "Olleman v. Reagan, 28 Ind. 109; Hunt V. Gookin, 6 Vt. 462; Hufif v. Lutz, 87 Ind. 471 ; Painter v. Painter, 68 Cal. 395, 9 Pac. 450; Van Dyke v. Kilgo, 54 Ga. 551 ; Stanberry v. Cat- tell, 55 Iowa 617, 8 N. W. 478 ; White V. Russell, 79 111. 155. A surviving partner who has not paid all of the partnership debts, but has paid there- on all the partnership assets and merely assumed and secured the bal- ance, has no right of action against the estate of the deceased partner. Whether, having paid all, he can look to the estate of the deceased, if it be insolvent, quaere. Huff v. Lutz, 87 Ind. 471. *' American Bonding Co. v. State, 40 Ind. App. 559, 82 N. E. 548; Har- 451 SURVIVING PARTNERS. ^^^ The liability of partners is joint and several, and where the surviving partner, in the absence of partnership assets is com- pelled to pay a firm debt out of his own money he can compel con- tribution from the estate of the deceased partner.''' But where the partnership is solvent the surviving partner must reimburse himself out of its assets, and until he has exhausted such assets, he cannot enforce any claim against the estate of the deceased partner to recover the moiety of his individual means he has ex- pended in the payment of the partnership debts."' Nor can he re- cover from the estate of the deceased partner, in case of the in- solvency of the firm, unless he has actually paid out of his own means the partnership debts. The fact that he has merely as- sumed them and agreed to pay them, gives him no right of action against the deceased partner's estate." § 451. Rights of the personal representative. — The execu- tor or administrator of a deceased partner has the right to have the ultimate share of his decedent in any partnership property ascertained and paid over for the benefit of his estate. This con- veys with it the right to have the estate of the partnership closed up honestly and efficiently, and as speedily as the substantial in- terests of its affairs demand. But such executor or administrator has no claim upon the specific property or assets of the firm as such, but he has the right to have an honest and efficient settle- ment of the partnership business, and the share of his decedent ascertained and accounted for. And if the sun-iving partner fails unreasonably to close up and settle such partnership business, or if it shall be shown that he is unfaithful to his trust, he will become liable to such executor or administrator in an action for an accounting and final adjustment of the partnership business; but as a general rule no such action will lie in favor of an execu- tor or administrator of any deceased partner until after demand has been made upon such sun-iving partner for a settlement and rah V Davis, - Ind. App. -, 96 N. "Beckett v. Little, 23 Ind. App. 65, E 41 54 N. E. 1069. '"Harter v. Songer, 138 Ind. 161, "Huff v. Lutz, 87 Ind. 471. 11 N. E. 595; Burns' R. S. 1908, § 1272. 768 INDIANA PROBATE LAW § 451 been refused; and where such demand is necessar}-, it should be averred in the complaint. "'^ In such cases, as the right of the personal representatives of a deceased partner is only to his share of the partnership estate after the partnership debts are paid and its affairs finally settled, and the shares of the partners ascertained, the complaint should contain allegations of these facts in proper traversable averments, and show a demand made, or a proper excuse for not making a demand, before suit is brought.^* Such personal representative of the deceased partner mav com- pel the surs'ivor to wind up the partnership business and apply the firm assets to tlie payment of its debts, even though the part- nership is insolvent, and there will be no surplus coming to the estate. He may do this for the purpose of reducing as much as possible the liability of the estate he represents. ^^ "Skillen v. Jones, 44 Ind. 136; An- derson V. Ackerman, 88 Ind. 481 ; Storj- Partnership, § 347. Where the estate of the deceased partner is lawfully possessed of a fund which is the sole asset of the partnership, and nothing remains to be done except to state an account between the partners, it need not pay over that fund to the surviving partner. Kutz v. Dreibelbis, 126 Pa. St. 335, 17 Ad. 609. Where partnership propertj- was on dissolu- tion left with one of the members, who died, and the executor converted it and placed the proceeds to the credit of the estate, the other partners may recover from the estate their share of the proceeds only; if the act of conversion were tortious or negligent, the executor is personally liable for any sum which the property was worth in excess of the price realized. Bradley v. Brigham, 144 :Mass. 181, 10 N. E. 793. ^ Krutz V. Craig, 53 Ind. 561 ; Cob- ble V. Tomlinson, 50 Ind. 550. When a co-partnership is dissolved bj' the death of a member of the firm, the law invests the surviving partner with the exclusive right of possession and management of the assets of the part- nership, for the purpose of closing up and settling the firm's business; and the surviving partner is not liable to an action by the personal representa- tive of the deceased partner in such case, as a general rule, until a de- mand is made for a settlement and refused, and where a demand is necessary it should be averred in the complaint. Anderson v. Ackerman, 88 Ind. 481. ^Jennings v. Chandler, 10 Wis. 21. A settlement and accounting between the executors and the surviving part- ner having been had, a court of equity, after an acquiescence in the settlement for fourteen j^ears, unex- plained by circumstances, will not de- cree the opening of the account, al- though it appears that the settlement has been irregularly made. Valentine v. Wysor, 123 Ind.' 47. 23 X. E. 1076, 7 L. R. A. 788n. § 45^ SURVIVING PARTNERS. 769 And he has the same right to have the partnership business closed up and the balance distributed, against one who has pur- chased the interest of the survivors as he would have had against such survivors.'^' The surviving partner can be compelled to pay over any part of the individual estate of the deceased partner which may come into his hands, even though the estate be indebted to him.^' In the absence of express authority in the will of the deceased partner, or in the articles of partnership, a sur\-iving partner has no power to continue the business of the firm; and if he should do so he cannot bind the estate of a deceased partner.^* It would be an abuse of the trust, and at the sole risk of such surviving partner. By so doing he would render himself liable to the repre- sentative of the deceased partner for the profits made by so con- tinuing the firm business, or for interest upon the share of such decedent ; and he alone is liable for all losses which might occur.'^® But where the interest of the deceased partner becomes vested in one of the surviving partners, who gives his consent to a con- tinuance of the co-partnership, the above rule does not apply.^** .§ 452. The survivor's power of disposition. — It is the duty of a surviving partner to pay the firm indebtedness and distribute the surplus in his hands if any, as soon as is possible. For this purpose he is given full power to sell and dispose of all part- "• Williams v. Love, 2 Head. Klotz v. ^klacreadj-, 39 La. Ann. 638, rTenn.) 80, 73 Am. Dec. 191n; De 2 So. 203; Goodburn v. Stevens, 1 Veau V. Fowler, 2 Paige (X. Y.) Md. Ch. 420; Bernie v. Vandever, 16 400: Wilson v. Soper, 13 B. Mon. Ark. 616; BoUenbacher v. First Xat (Ky.) 411, 56 Am. Dec. 573. Bank, 8 Ind. App. 12, 35 N. E. 403. ''Roberts v. Law, 4 Sandf. (X. Y.) A surviving partner who assumed to 642 ; Moffatt v. Thomson, 5 Rich. Eq. continue the business of the firm, (S. Car.) 155, 57 Am. Dec. IZl ; Ross even under an order of court, and V. Pearson, 21 Ala. 473. who sold goods to irresponsible per- ** In re. Wood's Estate, 1 Pa. St. sons, is not entitled to credit for the 368; Lucht v. Behrens, 28 Ohio St. amount represented by the notes of 231, 22 Am. Rep. 378; Kirkman v. such persons. Harrah v. Davis, — Booth. 11 Beav. 273. Ind App. — , 96 X. E. 41. "Oliver v. Forrester, 96 111. 315; "Millerd v. Ramsdell, Harr. Ch. In re. Brown's Appeal, 89 Pa. St. 139; (Mich.) ZIZ. Freeman v. Freeman, 136 Mass. 260; 49— Pro. L.^w. 770 INDIANA PROBATE LAW. § 452 nership property in whatever form it may be, so as to get the as- sets of the fimi in a shape for distribution.'"'' He has full power to sell and convey the real estate of the firm, and this without regard to whether or not the proceeds will be needed to pay debts.*'- That the firm, and each of the partners, are insolvent, is no impediment to a bona fide transfer of partnership property, made for the purpose of closing up the business of the firm.^* •" Willson V. Nicholson, 61 Ind. 241 ; Milner v. Cooper, 65 Iowa 190, 21 N. W. 558; Allen v. Hill, 16 Cal. 113; Calvert V. Miller, 94 N. Car. 600. The survivor, in the case of the death of a partner, must pay the debts out of the personal property, if there is sufficient for the purpose, and the widow and heirs of the deceased part- ner, in that event, have the right to the share of the deceased partner in the real estate owned by the firm ; but if the personal property is not suffi- cient to pay all the debts of the firm, and it is necessary to sell the real estate of the firm to pay the debts of the firm, the surviving partner has the right to sell and convey the same. If he sells and conveys the same in good faith, for a valuable considera- tion, without an order of court, he passes an equitable title to the pur- chaser. Walling V. Burgess, 122 Ind. 299, 22 N. E. 419, 23 N. E. 1076, 7 L. R. A. 481n. ^ Solomon v. Fitzgerald, 7 Heisk. (Tenn.) 552. A witness who had purchased all the interests of her de- ceased brother in a partnership, was competent to testify to a conversa- tion had between the deceased and the witness and a third party relating to the partnership business. Case v. Ellis, 9 Ind. App. 274, 36 N. E. 666. In an action by a surviving partner on an account owing the partnership. the defendant is a competent witness to testify as to various payments made by him, on the account, to the deceased partner. Wood v. Stewart, 9 Ind. App. 321, 36 N. E. 658. Where it becomes necessary to sell a parcel of real estate which is indivisible, in equity regarded as personal property so far as necessary to pay the debts of the firm, to apply a portion of the proceeds to the payment of the firm debts, the sale in good faith for a valuable consideration passes the equitable title to the whole tract, and the heirs of the decedent, or his legal representatives, take the surplus pro- ceeds instead of the real estate. Wall- ing V. Burgess, 122 Ind. 299, 22 N. E. 419. 23 N. E. 1076, 7 L. R. A. 481n. *" Willson V. Nicholson, 61 Ind. 241. A conveyance by the executor in pur- suance of the terms of such will to the surviving partner of the interest of the testator in the firm property, in consideration of the payment by the surviving partner of the firm debts, and of certain individual debts of the deceased partner, and a convey- ance to the widow of certain real estate, will not be disturbed by a court of equity until it is impeached as fraudulent or unfair; or unless collusion between the executors and surviving partner is shown. Valen- tine V. Wysor, 123 Ind. 47, 23 N. E. 1076, 7 L. R. A. 788n. In such case. § 452 SURVIVING PARTNERS. 77I He may assign or transfer partnership property in payment of partnership debts, or he may pledge it as security for such debts, or for the purpose of raising money to pay them.*'* But he cannot assign or transfer partnership property for the payment of a separate debt, or the debt of another firm of which he may also be a surviving partner.*'^ The surviving partner has a right to mortgage the firm prop- erty in settling up the partnership business, and where such mort- gage is executed in good faith the mortgagee's right is superior to the right of the representatives of the deceased partner.®*' But such right is confined to personal property. A legal mortgage cannot be made of partnership real estate by a surviving partner without the concurrence of all the partners.®^ The surviving partner, while he may be clothed with the entire legal title to the partnership property, has no right or power to divert such property to his own private use, or to any use in dero- gation of the creditors of the firm. He is their trustee to wind up the concern in the best manner for all interested, and without unnecessary delay. ^'^ An execution against an individual partner cannot be levied on the property in the hands of the survivor, unless the lien had at- tached to the interest of such partner before his death.®** where the propertj' is sold for its Flannagan, 106 U. S. 648, 27 L. ed. full vakte, and the widow receives all 211, 1 Sup. Ct. 369. of the proceeds of the sale in excess "^ Bell v. Hepworth, 51 Hun (N. of the amount necessary to pay the Y.) 616; Hadley v. Milligan, 100 Ind. firm debts, she is estopped from 49; First Nat. Bank v. Parsons, 128 claiming any interest in the real estate Ind. 147, 27 N. E. 486. as against the purchasers. Walling " Lindley Partnership, 284. V. Burgess, 122 Ind. 299, 22 N. E. ''Parsons Partnership, p. 442; 419, 23 N. E. 1076, 7 L. R. A. 481n. Jones v. Dexter, 130 Mass. 380, 39 «* Peyton v. Stratton, 7 Gratt. (Va.) Am. Rep. 459n ; Bispham's Prin. Eq., 380; Mutual Life Ins. Co. v. Sturges, § 514; Bollenbacher v. First Nat. 33 N. J. Eq. 328; Daby v. Ericsson, Bank, 8 Ind. App. 12, 35 N. E. 403; 45 N. Y. 786; Roys v. Vilas, 18 Wis. Skidmore v. Collier, 8 Hun (N. Y.) 179. 50; Harrah v. Davis, — Ind. App. — , « Scott V. Tupper, 8 S. & M. 96 N. E. 41. (Miss.) 280; Hutchinson v. Smith, 7 °° Newell v. Townsend, 6 Sim. 419; Paige (N. Y.) 26; Holland v. Fuller, Bank v. McCall, 3 Binn. (Pa.) 338. 13 Ind. 195. But see Fitzpatrick v. 772 INDIANA PROBATE LAW. § 453 § 453. Survivor's right to purchase. — In the settlement of the partnership affairs, the law gives the surviving partner au- thority to sell the partnership property, but as he is held to be a trustee, he cannot purchase the trust property from himself, no matter whether the attempt be made by means of a public or private sale. This is so both because his duty as seller and his interest as purchaser are in irreconcilable conflict, and because it is indispensable to every legal contract of sale and purchase, that there be two contracting parties competent to enter into a binding engagement with each other. Such sales are everywhere held to be void, and it is of no avail to show that the trustee acted in good faith. Such transactions are poisonous in their tendencies, and violative of public policy, and are declared void, not for the purpose of affording a remedy against actual mis- chief, but to prevent the possibility of wrong. But these prin- ciples do not apply or control in the case of a sale made by the personal representative of a deceased partner to a sui-viving partner of the interest of his decedent in partnership business. Such transactions, when fairly entered into, will be upheld and encouraged. The rule which would govern the one case cannot control the other."^" A sui-viving partner, who purchases of the administrator of a deceased co-partner such deceased co-partner's interest in the partnership business, cannot, after such purchase, set off against a judginent for the purchase-money a claim in the form of a judgment due himself against the estate of such decedent. By the purchase of the deceased partner's interest, such sur- viving partner waived his exclusive right to the possession, sale or disposition of the partnership property. The administrator, by the act of the sale, assumes control and possession of the individual interest of the decedent in such partnership business. The principle of mutuality does not exist between such claims so as to permit a set-off." Surviving partners, if they hold ™ Valentine v. Wysor, 123 Ind. 47, "" Welborn v. Coon, 57 Ind. 270; 23 N. E. 1076, 7 L. R. A. 788n. Dayhuff v. Dayhuff, 27 Ind. 158. § 454 SURVIVING PARTNERS. 773 claims, or a balance against the deceased partners, are treated like other creditors. '^^ In a purchase even from the executor or administrator of the deceased partner, the utmost good faith must be exercised. Such a settlement is only deemed prima facie fair, and may be set aside for fraud, mistake, or some such ground.''^ In one case, where two of three administrators sold the de- ceased partner's interest in the firm to the third administrator who was also a surviving partner, the court held that the sale was voidable at the election of the interested parties, without regard to the good faith of the transaction.'* As the proceeds of the sale of a deceased partner's interest in the fimi property are firm assets to be first applied to the pay- ment of fimi debts, where a sui*viving partner, who is also ad- ministrator of his deceased partner's estate, has bought his in- testate's interest in certain partnership property, he will be chargeable as administrator with only the balance of the price of such interest, after deducting the deceased partner's pro- portion of a firm debt due the sui-viving partner.^^ In this state it is held that nothing less than fraud or collusion will invalidate an arrangement between the executor or admin- istrator of a deceased partner and a surviving partner, whereby the latter becomes the purchaser of the deceased partner's share in the partnership.^*' § 454. Effect on partnership real estate. — As between the partners there is no difference, in so far as their ultimate rights and interests are concerned, whether the partnership property " Parsons Partnership, p. 450. chaser of the interest of his deceased ''Heath v. Waters, 40 Mich. 457; partner in the partnership business INIoses V. Moses, 50 Ga. 9; Kimball from his legal representatives. Val- V. Lincoln. 99 111. 578 ; Sage v. Wood- entine v. Wysor, 123 Ind. 47, 23 N. E. in, 66 N. Y. 578. 1076, 7 L. R. A. 788n. '"Gilbert's Appeal, 78 Pa. St. 266. '^ Hart v. Hart, 31 W. Va. 688, 8 While a surviving partner may not S. E. 562. become a purchaser of the firm prop- '"Valentine v. Wysor, 123 Ind. 47, erty at his own sale, he is not dis- 23 N. E. 1076, 7 L. R. A. 788n. qualified from becoming the pur- 774 INDIANA PROBATE LAW. g 454 held for the purposes of trade or business consists of personal, or real estate, or both.'" The entire assets of a firm, including both the real and personal property, are liable for the payment of the partnership debts of the firm. In equity, the real estate belonging to a partnership is, in so far as the partners and their creditors are concerned, treated merely as personalt}^, and is governed by the general doctrines of law applicable to that class of property ; and to all other in- tents and purposes will it be deemed personal property if the partners have in any way purposely impressed the character of personalty upon it. But in the absence of any agreement between the partners, or any act of theirs which would give it such an impress, there is a wide difference in judicial opinion as to whether it should be treated as real or personal property.'^ The American decisions in relation to real estate purchased with partnership funds, or for the use of the firm, may generally be considered as establishing two principles : First, that such real estate is, in equity, chargeable with the debts of the co-part- nership, and with any balance that may be due from one partner to another in winding up the affairs of the firm ; Second, that as between the personal representatives and the heirs-at-law of the deceased partner, his share of the surplus of the real estate of the partnership which remains after paying the partnership debts, and the claims of the different members of the firm, as between themselves, is to be considered and treated as real estate,'^* "" Story Partnership, § 92. Pepper v. Thomas, 85 Ky. 539, 4 S, '^ Story Partnership, § 93. Where W. 297. land is purchased with partnership ™ Buchan v. Sumner, 2 Barb. Ch, funds and conveyed to the partners (N. Y.) 165, 47 Am. Dec. 30Sn; by name, although in law they are Shanks v. Klein, 104 U. S. 18, 26 L. considered as tenants in common and ed. 635; Buckley v. Buckley, 11 Barb, no notice is taken of the equitable re- (N. Y.) 43; Goodburn v. Stevens, 1 lations arising out of the partnership, ]\Id. Ch. Dec. 420. Real estate, pur- yet in equity the partnership prop- chased by partners and deeded to erty is applied to the purposes of the them in their individual names and partnership and a trust created for paid for out of the money of the the security of the partnership debts, firm and used in the business of such Ross V. Henderson, 77 N. Car. 170; § 454 SURVIVING PARTNERS. 775 One of the purposes and objects of treating the partnership real estate as personal property, in equity, is that it may be sold and conveyed by the members of the firm in the usual course of business without the wives of the individual members joining in the conveyance. Were it otherwise the business of the firm might be stopped and the partners unable to realize on the assets of the firm by reason of the wife of one of the members refusing to join in a conveyance of the real estate. -° For all the purposes of the partnership it will be treated as personal property, although the title may have been taken in the name of one of the partners instead of that of the firm; and the wife of such partner takes no interest in the partnership real estate, nor is it necessary that she should join in a deed of conveyance thereto. ^^ The following is the American rule: "Real estate purchased and held as partnership property, is so treated in equity and sub- jected to all the incidents of partnership property. If there be death, the sun'iving partner, whether he hold the whole title, or hold it in part, or hold none of it. if he be a creditor of the firm, is held to be firm property, ment of all the partnership debts, and Roberts v. IMcCarty, 9 Ind. 16, 68 advances made by the other partners; Am. Dec. 604. hence she has no claim to dower in «" Walling V. Burgess, 122 Ind. 299, the lands sold or mortgaged by the 22 N. E. 419, 23 N. E.' 1076, 7 L. R. firm, although she did not join in A. 481n. the sale, but may have a dower in- ^^ Dickey v. Shirk, 128 Ind. 278, 27 terest in the balance of the purchase- N. E. 733. Partnership real estate money so remaining which is then may be converted into personalty treated as real estate. Howard v. without the consent of the wife of a Priest, 5 Mete. (Mass.) 582. Hus- partner. West Hickory Min. Assn. v. ton v. Neil, 41 Ind. 504; Loubat v. Reed, 80 Pa. St. 38. The widow is Nourse, 5 Fla. 350 ; Greene v. Greene, only entitled to her interest after the 1 Ohio 535, 13 Am. Dec. 642n ; Sum- pavment of the firm debts and settle- ner v. Hampson. 8 Ohio 328, 32 Am. ment of the partnership affairs. Dec. 722 ; Duhring v. Duhring, 20 Mo. Robertshaw v. Hanway, 52 Miss. 713. 174; Richardson v. Wyatt, 2 Desaus The dower interest of the widow of Eq. (S. Car.) 471; Galbraith v. a deceased partner depends upon the Gedge, 16 B. Mon. (Ky.) 631; Wool- contingencv whether any portion of dridge v. Wilkins, 3 How. (Miss.) the proceeds of sale of partnership 360; Cobble v. Tomlison, 50 Ind. real estate remains to the share of 550; Simpson v. Leech, 86 111. 286; her deceased husband after the pay- Brewer v. Browne, 68 Ala. 210. 776 INDIANA PROBATE LAW. 454 partnership, has the same rights against the real estate, and only the same, which any other creditor has. But this real estate goes to pay the debts of the partnership, and only after they are paid does it, or what is left of it, become the property of the partners, or their representatives, free from all claims, and then it is divided between them as so much money capital should be. But it then becomes real estate, or, rather, all the incidents and qualities of real estate revive. This rule goes upon the ground of a trust imposed upon all who hold the legal title in behalf of all partnership objects; and that trust once discharged, the resi- due resumes its former character."^- The Supreme Court of this state, in its decisions, has been governed by these principles, and its rulings have been in har- mony with them; and whatever share of the real estate of a part- nership, after the demands and claims of the partnership have been fully satisfied, which would belong to a deceased partner, would go to his heirs, and not to his personal representatives.^^ ^"Parsons' Partnership (3d ed.), p. 403; Walling v. Burgess, 122 Ind. 299, 22 N. E. 419, 23 N. E. 1076, 7 L. R. A. 481n. The legal title to part- nership lands is held to be in the partners as tenants in common, sub- ject in equity to be used for the pay- ment of the debts of the partnership, but when such debts are paid, all the qualities and incidents of real estate revive, and it will descend as other land. Pepper v. Pepper, 24 111. App. 316; Lime Rock Bank v. Phetteplace, 8 R. I. 56. In Buchan v. Sumner, 2 Barb. Ch. 165, 200, 47 Am. Dec. 305n, Chancellor Walworth has stated the following as the rule: "Real estate purchased with partnership funds, or is, for the use of the firm, * * in equity, chargeable with the debts of the co-partnership, and with any balance which may be due from one co-partner to another upon the wind- ing up of the affairs of the firm. Secondly, that, as between the per- sonal representatives and the heirs at law of a deceased partner, his share of the surplus of the real estate of the co-partnership, which remains after paying the debts of the co- partnership, and adjusting all the equitable claims of the different mem- bers of the firm as between them- selves, is considered and treated as real estate." This view was an- nounced in an elaborate opinion upon a thorough review of the American authorities. '"^ Matlock v. Matlock, 5 Ind. 403; Roberts v. McCarty, 9 Ind. 16, 68 Am. Dec. 604; Dean v. Phillips, 17 Ind. 406; Kistner v. Sindlinger, 33 Ind. 114; Walling v. Burgess, 122 Ind. 299, 22 N. E. 419, 23 N. E. 1076, 7 L. R. A. 481n; Grissom v. Moore, 106 Ind. 296, 6 N. E. 629, 55 Am. Rep. 742; Hale V. Plummer, 6 Ind. 121 ; Patter- son v. Blake, 12 Ind. 436; Scheeffer v. Fithian, 17 Ind. 463; Huston v. Neil, 41 Ind. 504; Haas v. Shaw, 91 Ind. § 455 SURVIVING PARTNERS. ^^J Whether a partnership formed for the business of buying and selHng real estate and sharing in the profits converts the land absolutely into personalty has been decided both ways.^* The weight of authority, however, seems to regard lands bought by a firm engaged in the business of speculating in real estate as personal property for all partnership purposes, but after winding up the partnership and settling its affairs, the real estate remain- ing on hand at that time resumes its legal characteristics.^^ § 455. Right of partnership creditors. — The common-law rule in the case of a joint contract is, that if one of the parties die, his personal representatives are discharged from liability on such contract, and the survivor alone can be sued;*'' but the rule is different in equity. Story in his work on partnership says : "The doctrine formerly held upon this subject seems to have been, that the joint creditors had no claim whatever, in equity, against the estate of a deceased partner, except when the surviving partners were at the time, or subsequently became insolvent or bankrupt. But this doctrine has since been over- turned ; and it is now held that, in equity, all partnership debts are to be deemed joint and several ; and consequently the joint creditors have in all cases a right tO' proceed in law against the survivors, and an election also, to proceed in equity against the estate of the deceased partner, whether the survivors be insolvent or bankrupt or not."" This general rule is modified and controlled by the rule that "so far as the partnership property has been acquired by means of partnership debts, those debts have in equity a priority of claim to be discharged ; and the separate creditors are only 384, 46 Am. Rep. 607. Before the ''Young v. Thrasher, 115 Mo. 222, liquidation of a partnership, its prop- 21 S. W. 1104; Rovelsky v. Brown, erty is treated as personalty, although 92 Ala. 522, 9 So. 182, 25 Am. St. 83 ; partnership assets may be invested in Mallory v. Russell, 71 Iowa 63, 32 N. land. Leaf's Appeal, 105 Pa. St. 505. W. 102, 60 Am. Rep. 776; Hale v, ** Markham v. Merrett, 7 How. Plummer, 6 Ind. 121. (Miss.) 437. 40 Am. Dec. 16\ Ludlow '" Chitty's Pleadings, p. 50. V. Cooper, 4 Ohio St. 1 ; Coster v. " Story Partnership, § 362. Clark, 3 Edw. Ch. (N. Y.) 428. 778 ' INDIANA PROBATE LAW. § 455 entitled in equity to seek payment from the surplus of the joint fund after satisfaction of the joint debts ; and on the other hand the joint creditors should only look to the surplus of the separate estate of the partners after the payment of the separate debts."^^ In the payment of partnership debts it is the well settled rule that partnership property must be first applied to the payment of partnership debts, and individual property to the payment of individual debts. -^ The rule laid down, and which has been adopted and followed by the Supreme Court of this state, is as follows : "If the partnership creditors cannot obtain payment out of the partnership estate, they cannot in equity resort to the separate and private estate until private and separate creditors are satisfied: nor have the creditors of the individual partners any claim upon the partnership property until all the partnership creditors are satisfied. The basis of the general rule is that the funds are to be liable on which the credit was given. In con- tracts with a partnership, the credit is supposed to be given to the firm, but those who deal with an individual member rely upon his sufficiency."®'^ In a leading case on this point the court says: "If, as stated by Chancellor Kent, the reason of the rule be, that they who give credit to a partnership are supposed to rely on the firm for payment, and those who credit an individual member rely on his sufficiency; or, if the additional circumstance be also considered as entering into the reason of the rule, that the creation of the partnership debt is supposed to have increased the partnership effects, and an individual debt the individual effects ; we do not see any good reason for excepting out of the rule those cases where there are no joint or partnership funds ^' Kent's Com., 74. In equity all be insolvent or bankrupt or not. partnership debts are deemed as joint Warren v. Able, 91 Ind. 107; Ralston and several, and, consequently, such v. Moore, 105 Ind. 243, 4 N. E. 673 ; creditors have in all cases a right to Hess v. Lowrey, 122 Ind. 225, 23 N. proceed at law against the survivors, E. 156, 17 Am. St. 355, 7 L. R. A. and an election, also, to proceed in 90. equity against the estate of the de- *' Hardy v. IMitchell, dl Ind. 485. ceased partner, whether the survivors "" Kent Com., 74. § 455 SURVIVING PARTNERS. 779 out of which the debt could be made, and no sui'viving solvent partner. Wh}- should a partnership creditor, who has contracted with a view to payment by the firm, upon a failure of partnership effects, encroach upon the rights of the creditors of an individual member of the firm, who have given him credit individually with a view to his individual responsibility ? The creditors of an individual member of a firm are as much entitled to have their debts paid out of the individual property before any part of it can be applied to the payment of partnership debts, as are part- nership creditors to have partnership property applied to part- nership debts, before any part can be applied to individual debts; and yet no case has been brought to our notice in which it has been held that the insolvency of an individual member of a firm was any reason for permitting a creditor of the individual to re- ceive payment out of the partnership property, unless there was a surplus after paying partnership debts. The rule, it seems to us, should be the same in both cases. "''^ Rights of action for liabilities due a partnership survive and vest exclusively in the surviving partners, but the liabilities of the partnership on the death of a partner sui-\'ive not only against the surviving members of the firm, but also against the estate of the deceased partner. For this reason a creditor of the part- nership is not required to exhaust his remedy against the sur- viving partners, or show that they are insolvent, before he can resort to the estate of the deceased partner. On the death of a partner a creditor of the firm may proceed at once against the estate of such decedent as well as against the surviving partners. "*- The law does not recognize a partnership as a distinct legal entity, so it holds the obligation of a partnership as the joint obligation of the individual members of the firm.'''' It is only when the firm or some of its members are insolvent that the distinction arises between a partnership debt and other kmd of "^ Bond V. Xave. 62 Ind. 505 ; Kist- '' Ralston v. Moore, 105 Ind. 243, ner v. Sindlinger, 33 Ind. 114; Huff 4 N. E. 673; Newman v. Gates, 165 V. Lutz, 87 Ind. 471; Holland v. Ful- Ind. 171, 72 N. E. 638; Camp v. ler, 13 Ind. 195 ; Hardy v. Mitchell, 67 Grant, 21 Conn. 41, 54 Am. Dec. 321 ; Ind. 485 : Bake V. Smiley, 84 Ind. 212. "^ Dean v. Phillips, 17 Ind. 406; 780 INDIANA PROBATE LAW. § 456 joint obligation. In that case equity intervenes and applies the partnership property first to the payment of partnership debts, and the individual property first to the payment of individual debts.'" Individual creditors of insolvent partners have priority over firm creditors to the individual property of such partners."' Under the law the members of a co-partnership are, personally, jointly and severally liable for all the indebtedness of the firm."*' § 456. Actions by and against surviving partner. — The surA'iving partner, being in legal contemplation, the only repre- sentative of the firm in closing out its business, the joint estate having vested in him. is the proper person to bring an action in favor of the partnership in all matters relating to partnership affairs. And it is not usually necessary that the personal repre- sentative of the deceased partner should be joined in the action, either as plaintiff or defendant."^ The fact that the surviving partner was a silent or dormant partner, makes no difference in his rights, and in actions in regard to partnership affairs it is not necessar}- to join the ad- ministrator of the deceased partner as a co-plaintiff."^ The defendant, in an action by a surviving partner on a chose in action belonging to the partnership, is a competent Hardy v. Overman, 36 Ind. 549; debt due, and it appears that one of Olleman v. Reagan, 28 Ind. 109; the partners died after the claim was Stumph V. Bauer, 76 Ind. 157; Ral- created but before suit was com- ston V. Moore, 105 Ind. 243, 4 N. E. mcnced, the process, pleadings, and 673; Newman v. Gates, 165 Ind. 171, all the proceedings may be amended 72 N. E. 638. where no substantial rights of the de- '^ Schnell v. Schnell, 39 Ind. App. fendant are affected thereby, by sub- 556, 80 N. E. 432. stituting as plaintiffs the surviving ^ American Bonding Co. v. State, partners. Cragin v. Gardner, 64 40 Ind. App. 559, 82 N. E. 548. Mich. 399, 31 X. W. 206. •* Swing v. Hill, 44 Ind. App. 140, "« Beach v. Hayward, 10 Ohio 455. 88 N. E. 721. A partnership agreement may, after °^ Davidson v. Weems, 58 Ala. 187; the dissolution of the partnership by Belton V. Fisher, 44 111. 32; Willson the death of one of the partners, be V. Nicholson, 61 Ind. 241 ; Nicklaus enforced against the survivor as a v. Dahn, 63 Ind. 87. Where an personal obligation. McLean v. Mc- action is brought by a firm for a Allister, 30 Mo. App. 107. § 45^ SURVIVING PARTNERS. 78 1 witness in his own behalf. The executor or administrator of the deceased partner is neither a necessary nor a proper party to such an action, nor by making him a party can he be deprived of the right to testify as a witness in the action.'''' In an action by a surviving partner upon any right, demand, or chose in action belonging to the partnership, the complaint should set out the names of all the partners constituting the firm, and should also show how the plaintiff became survivor.'- As the title to the choses in action of the partnership rests in the surviving partner individually, he may join in the same action partnership claims with his own individual ones, or unite in the same action claims against the same person due two dif- ferent firms of which he is sunaving partner. - While in suits in relation to the partnership business the better practice would indicate that such actions should be brought by the sur\aving partner as such, it is not necessarv" that they should be. He may sue in his own right or in his representative char- acter as surviving partner. In either case, however, the action should clearly indicate to the defendant whom he is called to answer.^ Where he brings suit on a demand due the firm, a promise to him by the debtor after the co-partner's death, will take the case out of the statute of limitations. The surviving partner com- bines the character of an original party to the contract and that of representative of the deceased partner."* But in his representative capacity he will not be allowed to prejudice the estate of the deceased partner by admissions or payments.^ The rules above noted apply as well in suits against a sur- viving partner. In actions against him upon indebtedness of °«Nicklaus v. Dahn, 63 Ind. 87. 203; Berolzheimer v. Strauss, 51 N. ^Hubbell V. Skiles, 16 Ind. 138. Y. Super. 96; Farwell v. Davis, 66 -Smith V. Wood, 31 Md. 293; Staf- Barb. (N. Y.) 1Z\ Header v. Leslie, ford V. Gold, 9 Pick. (Mass.) 533; 2 Vt. 569. Adams v. Hackett, 27 N. H. 289, 59 "Barney v. Smith, 4 Har. & J. Am. Dec. Zld; Nehrboss v. Bliss, 88 (Md.) 485, 7 Am. Dec. 679. N. Y. 600. ' Way v. Bassett, 5 Hare 54. ' Vandenheuvel v. Storrs, 3 Conn. 782 INDIANA PROBATE LAW. § 457 the firm, he may be sued individually or as surviving partner; the fact of the partnership death or survivorship need not be noticed; and demands against him individually may be joined with claims due from the partnership." A promise to pay a debt of the partnership by the surviving partner is equivalent to an allowance of a claim by the court, and will stop the running of the statute of limitations." The surviving partner not being an administrator, it is not necessary that a claim should be presented to him for allowance before suit can be brought upon it.* • The right of action to collect the debts and assets due to a partnership where any of the partners are dead is vested by law exclusively in the surviving partner or partners." Nor does the failure of such survivor to inventory any such debt or asset affect his exclusive right to sue for and recover it.^*^ § 457. As to heirs of a deceased partner. — As a rule, in the absence of special circumstances, the heirs of the deceased part- ner have no locus standi against the surviving partner, and, as a general rule, an action to compel a surviving partner to account can only be maintained by the personal representative of the deceased partner, yet where it is shown that there is collusion between the surviving partner and such personal representative, the latter refusing to compel an account, a court of equity will entertain such an action on behalf of the heirs. ^^ And a court of equity will ordinarily not entertain jurisdic- tion of such an action until, by its decree, a final adjustment of the business of the partnership can be effected." " Culbertson v. Townsend, 6 Ind. Mcintosh v. Zaring, 150 Ind. 301, 49 64; Butler v. Kirby, 53 Wis. 188, 10 N. E. 164. N. W. Z??)-, Friermuth v. Friermuth, "Valentine v. Wysor, 123 Ind. 47, 46 Cal. 42; Offutt v. Scott, 47 Ala. 23 N. E. 1076, 7 L. R. A. 788n; 2 104. Lindley Partnerships, 494; Harrison v. 'Denny v. Turner, 2 Mo. App. 52. Righter, 3 Stock. (N. J.) 389; Gris- ' Carr v. Catlin, 13 Kan. 393. som v. Moore, 106 Ind. 296, 6 N. E. 'Mcintosh V. Zaring, 150 Ind. 301, 629, 55 Am. Rep. 742. 49 N. E. 164 : Roys v. Vilas, 18 Wis. " Valentine v. Wysor, 123 Ind. 47, 179; 2 Bates Part.. § 1147. 23 N. E. 1076, 7 L. R. A. 788n; "Morrison v. Kramer, 58 Ind. 38; Thompson v. Lowe, 111 Ind. 272, 12 o § 458 SURVIVING PARTNERS. 78 The heirs of a deceased partner have no interest as such in the property of the firm; their only remedy is to compel the sur- viving partner to account for the surplus after the settlement of all the partnership liabilities. The rule of law is that a sur- viving partner has the right to the control and possession of the property of the firm, and that he may dispose of it in order to adjust the partnership accounts, and is only liable to the repre- sentatives of the deceased partner for what remains in his hands after the partnership affairs are settled; and the rights of the heirs of such deceased partner are subject to the adjustment of all claims between the partners, and attach only to the surplus which remains when the partnership debts are all paid and the affairs of the firm wound up. Such rights do not attach until all the debts are paid.^^ § 458. Statutory administration of partnership. — A part- nership estate, after a dissolution of the partnership by the death of one of the partners, must be administered upon in some way. As in the case of other estates, the firm assets must be devoted first to the payment of the partnership debts, and second, the surplus distributed to those entitled thereto. The settlement of such estate is, in many respects, similar to the settlement of de- cedent's estates, and is governed by the same general rules. The preference in such administration is first to the surv^iving partner or partners. The statute provides that in case of the death of one partner the surviving partner or partners shall pro- ceed to settle and close up. as speedily as may be practicable, the partnership affairs in accordance with the law now in force and the provisions of this act.^^ Such preference continues for seventy days after the death of the partner, and such sunnvor, like an administrator, must N E 476; Scott v. Searles, 13 Miss. Burgess. 122 Ind. 299, 22 N. E. 419, 25 23 N. E. 1076, 7 L. R. A. 481n; '' Valentine v. Wysor, 123 Ind. 47, Deeter v. Sellers, 102 Ind. 458, 1 N. 23 N. E. 1076, 7 L. R. A. 788n ; Gris- E. 854. som V. Moore, 106 Ind. 296, 6 N. E. " Burns' R. S. 1908, § 9712. 629, 55 Am. Rep. 742; Walling v. 784 INDIANA PROBATE LAW. § 458 file an inventory, appraisement and bond. The filing of these, however, are only required to insure a due and proper admin- istration of his trust, and to do the precise thing the law has always required him to do. The nature and extent of the in- terest in the partnership property which pass to him on the death of his partner are not changed or affected in any way by the statute, nor does the statute purport to direct or affect the manner in which he may dispose of and apply the firm assets. In this respect the surviving partner is left precisely where he was before the enactment of the statute. ^^ In one case it is said : "This act, while it leaves the title of the property, and upon filing the inventory, appraisement and bond, the possession of the same, in the sui"viving partner, gives the supervising control to the court having probate jurisdiction, and appears to be modeled upon the act for the settlement of decedents' estates. The duties and liabilities of the surviving partner who undertakes to settle the partnership business under this act are similar to the duties required of administrators, executors and guardians."^® The appointment and qualification of such surviving partner, under the statute, is not the source of his power to administer the affairs of the partnership, but merely a condition of the exercise of an already existent power. His failure to qualify, etc., as required by the statute, only deprives him of the power to act in the closing out of such business, in case some one else is appointed for that purpose." "* First Nat. Bank v. Parsons, 128 the probate court for the beneficial Ind. 147, 27 N. E. 486. Where the interest in real estate, but if there are same person is administrator of the no debts, and he has leased the land deceased partner and also surviving without the order of court, he must partner of the firm an allowance by account for the rents. Hartnett v. him of a partnership note against the Fegan, 3 Mo. App. 1. firm is not an allowance as against "Gregory v. Menefee, 83 Mo. 413; the individual estate. Burton v. Holman v. Nance, 84 Mo. 674 ; Blaker Rutherford, 49 Mo. 255. v. Sands, 29 Kan. 551 ; Nelson v. "State v. Matthews, 129 Ind. 281, Hayner, 66 111. 487; Walling v. 28 N. E. 703. The surviving partner Burgess, 122 Ind. 299, 22 N. E. 419, 23 who has qualified must account to N. E. 1076, 7 L. R. A. 481n. § 459 SURVIVING PARTNERS. 785 The statute sets out the proceedings intended to govern in the settlement of partnerships by a surviving partner. The prin- ciples embodied in the statute are in a general way those, which in the absence of a statute would be in equity, but such settle- ments must be made in accordance with the statutory provisions. ^^ The jurisdiction of the probate court over the settlement of the affairs of a surviving partnership is as exclusive as it is over that • of a decedent's estate." § 459. Required to file inventory and appraisement. — Such surviving partner, or partners, within sixty days after such death, shall proceed to make a full, true and complete inven- tory of the estate, goods, chattels, rights, credits, moneys and effects within his or their knowledge, and shall cause the same to be appraised by two competent freeholders or land-holders of the neighborhood, one of whom shall be selected by the sur- viving partner or partners, and the other by the clerk of the court having probate jurisdiction, making a full and complete schedule thereof, which said schedule and appraisement shall be sworn to by said appraisers before the clerk of such court, speci- fying that the property described in said schedule is appraised at a true cash value, which schedule shall by said appraisers be filed in the office of the clerk of the court having probate jurisdiction, immediately after the completion thereof.-" While the statute makes it the duty of a surviving partner to file an inventory of the assets and a list of the partnership lia- bilities in the clerk's office, there is no forfeiture of his right to the partnership property, or to a settlement of the partner- ship affairs, attached for his failure to do so; and if the survi- vor proceeds to settle the partnership, accounts for the assets and pays the debts, he will not be deprived of any right which he would have possessed if he had filed the inventory of assets and list of liabilities as provided by statute."^ " Harrah v. State, 38 Ind. App. 495, "■' Walling v. Burgess, 122 Ind. 299, '76 N. E. 443, 77 N. E. 747. 22 N. E. 419, 23 N. E. 1076, 7 L. R. '' Harrah v. State, 38 Ind. App. 495, A. 481n ; Morrison v. Kramer, 58 Ind. 76 N. E. 443, 77 N. E. 747. 38. In First Nat. Bank v. Parsons, =" Barns' R S. 1908, § 9713. 128 Ind. 147, 27 N. E. 486, the court 50— Pro. Law. 786 INDIANA PROBATE LAW. § 460 § 460. Must file list of liabilities, affidavits, etc. — It shall be the duty of such surviving partner or partners, immediately upon the filing of such schedule of appraisement, to file with the clerk of the court having probate jurisdiction his or their affi- davit that the schedule filed by said appraisers contains a full, true, and complete list of all property, rights, credits, moneys and effects belonging to said firm, and at the same time he or they shall file a full, true and complete list of all the liabilities of said firm at the time of the death of said deceased partner, to which said list of liabilities said surviving partner or partners shall also append his or their affidavit testifying to the correctness thereof.^^ § 461. Bond and sureties. — Upon the filing of the inven- tory, appraisement, and list of liabilities, such surviving partner or ])ai-tners shall execute a bond payable to the state of Indiana, in a sum double the amount of the interest of said decedent, as shown by said inventory, appraisement, and list of liabilities on file conditioned for the faithful performance of his or their trust, signed by at least two good and sufficient freehold sureties, to be approved by the clerk of said court. If such surviving part- ner or partners shall fail to file such bond within ten days after the filing of such inventor}^ and appraisement the judge of the court having probate jurisdiction shall appoint a receiver to take charge of the assets of such firm, who shall proceed to settle the same as though a voluntary assignment of the assets of said firm had been made for the benefit of creditors." The sureties upon the bond of such surviving partner or part- says : "The statute relative to sur- in the partnership property' which pass viving partners (Section 6046, et seq. to him on the death of his partner R. S. 1881) does nothing more than are not changed or affected in any place certain restrictions upon the way by the statute." Citing Emerson power of surviving partners, by re- v. Senter, 118 U. S. 3, 30 L. ed. 49, 6 quiring the filing of inventories, ap- Sup. Ct. 981. See Harseim v. Booth, praisements, lists of liabilities, etc., 134 Ind. 281, 33 N. E. 1016. and by requiring the filing of a bond. " Burns' R. S. 1908, § 9714. The nature and extent of the interest ^ Burns' R. S. 1908, § 9715. § 461 SURVIVING PARTNERS. 787 ners may be released as in cases of sureties upon the bonds of executors or administrators.^^ The provisions of this statute, requiring the surviving partner to file a bond, are only applicable to cases arising after the pas- sage of the act.-^ The surv'iving partner is liable upon such bond for his wrong- ful conversion of the partnership estate, the bond being available to creditors and others interested in the proper application of such assets, like the bond of an administrator or guardian. ^"^ But before a creditor can establish a liability upon such bond for a failure to pay his claim, it must first have been pre- sented to the surviving partner, and by him recognized as valid. "^ The measure of damages in a suit upon such bond for a failure to apply the assets of the firm to the payment of the debts, is the amount of the funds in the surviving partners' hands applicable to such debts. ^^ After a demand is made by one who is lawfully entitled to receive money from a surviving partner, such partner's posses- -"' Burns' R. S. 1908, § 9719. The cipal removed by the court, be re- section relative to release of sureties leased from any liability for any mal- upon bonds of executors or adminis- feasance or misfeasance of such trators is as follovirs : "Any surety principal thereafter occurring, but upon any bond of any executor, ad- shall remain liable for his prior acts ministrator, administrator virith the and omissions. And if a new bond will annexed, or de bonis non, may be executed, the principal and sur- apply to the circuit court approving eties therein shall be and continue such bond to be released therefrom, liable for the administration of the by filing his request therefor with the estate or execution of the will, as the clerk of said court, and giving ten case may be, in like manner and to days' notice thereof to the principal the same extent that the obligors in in such bond. Upon proof of such the original bond would have been notice, the court shall order such bound had it continued in force." principal, within a time to be fixed by Burns' R. S. 1908, § 2769. the court, not exceeding five days, to ^ Adams v. Marsteller, 70 Ind. 381. execute a new bond with penalty and ^ Miller v. Kingsbury, 128 111. 45, 21 sureties to the approval of the court. N. E. 209; Green v. Virden, 22 Mo. Upon failure to execute such new 506; Carr v. Catlin, 13 Kan. 393. bond within the time limited, he shall ^ State v. Woods, 36 Mo. 1Z. forthwith be removed by the court; ^Miller v. Kingsbury, 128 111. 45, and such surety shall, as soon as such 21 N. E. 209. new bond is furnished or such prin- 788 INDIANA PROBATE LAW. * § 462 sion becomes wrongful and tortious, and under proper circum- stances such surviving partner will be guilty of embezzlement.** Where a surviving partner has made a final report and the same has been approved by the proper court, such approval will be an adjudication of the trust, and will bar any action upon the bond.=^" ^J 462. Settlement and distribution. — Upon the settlement of such partnership business, the surviving partner or partners shall report the same to the proper court, and pay the surplus belonging to such deceased partner into court, to be paid out on the order of the judge to such person or persons as may be entitled to the same by law. Such surviving partner or part- ners shall settle such partnership business within two years from the filing of such inventory and appraisement, unless the c(nn-t, for good cause shown, shall grant a longer time.^^ The mere payment by a surviving partner of the firm debts is not necessarily a final and complete settlement of the part- nership matters; there may be debts to collect, accounts to settle and statements to make before the final condition of the firm can be known. ^- The partnership property and effects are charged witli the partnership debts, and the rights of the several members of a firm to such property and effects are subject to the rights of the =" State V. Matthews, 129 Ind. 281, '' Krutz v. Craig, 53 Ind. 561. 28 N. E. 703. Where, however, the complaint shows '" Harrah v. State, 38 Ind. App. 495, that the debts of the partnership are 76 N. E. 443. 77 N. E. 747. all paid, and that the only remaining '' Burns' R. S. 1908. § 9718. Where assets of the firm are the unsettled it appears that the surviving partner individual accounts of the partners, has paid all the partnership debts, and and states the nature and extent of that the estate of the deceased part- the defendant's indebtedness to the ner is indebted to him, it is essential plaintiff, on account of the firm's to the right of the heirs to call him transactions, an averment of a de- to account that they make it appear mand before suit brought is not neces- that he has in his hands partnership sary to the sufficiency of the com- property in excess of the amount plaint. Anderson v. Ackerman, 88 required to reimburse himself. Val- Ind. 481. entine v. Wysor, 123 Ind. 47, 23 N. E. 1076, 7 L. R. A. 788n. § 4^2 SURVIVING PARTNERS. 789 partnership creditors; therefore, upon a dissolution of the part- nership, there can be no proper distribution of the firm property among the members of such fimi imtil after all the partnership debts are paid.^" Nor until after a settlement of the partnership business can the representative of a deceased partner claim or take any por- tion of the property or assets of the firm, or assume any pos- session or control over such assets.^* And it is true, as a general rule, that courts will entertain matters relating to partnership accounts between partners, un- til, by its judgment or decree, a final adjustment of the partner- ship business can be effected; that is, mitil the accounts of the partners, or the affairs of the firm, are so far adjusted and settled that nothing remains except to ascertain the final state of the account bet\Yeen the partners, and until then no action can be maintained by one partner against the other in respect to par- ticular items of account pertaining to the partnership business.^^ Where a surviving partner, in his settlement of the partner- ship business, exhausts all the partnership assets in the payment of the debts against said partnership without satisfying all of said debts, and is compelled to pay the remainder of them out of his own means, he is entitled to recover from the estate of his deceased partner one-half the amount so paid. The Supreme Court says : "It was not a debt against the firm, and could not share in the distribution of the partnership assets. It was an individual debt due from the estate of the decedent, and we are not aware of any principle of equity that denies him the right to a distributive share of the property of the decedent with the other separate creditors."^® The surviving partner has a lien upon the balance of assets '' Holland V. Fuller, 13 Ind. 195 ; '' Willson v. Nicholson, 61 Ind. 241. Story Partnerships, § 360; Deeter v. ^Thompson v. Lowe, 111 Ind. 272, Sellers, 102 Ind. 458, 1 N. E. 854; 12 N. E. 476 : Valentine v. Wysor, 123 Grissom v. Moore, 106 Ind. 296, 6 N. Ind. 47, 23 N. E. 1076, 7 L. R. A. E. 629, 55 Am. Rep. 742; Valentine 788n. V. Wysor, 123 Ind. 47, 23 N. E. 1076, ^ Olleman v. Reagan, 28 Ind. 109; 7 L. R. A. 788n ; State v. Day, 3 Ind. Huff v. Lutz, 87 Ind. 471. App. 155, 29 X. E. 436. 790 INDIANA PROBATE LAW. § 462 in his hands to secure any balance due from the deceased part- ner on a settlement of the partnership. Such lien, however, re- lates to such debts as are due to the surviving partner from the finn, but not to private debts due him from the deceased partner.^^ It is the surviving partner's duty to reduce the assets of the fimi to money, and after deducting the necessary expenses, to apply the money to the payment of the partnership debts, and if any surplus remains to account for same with the estate of the deceased partner and pay over to such estate its share of such surplus. And no conversion arises until a failure to so account.'* There is a very marked difference between the law governing the final settlement of decedents' estates and the law governing the settlement of the business and affairs of a partnership dis- solved by the death of a member. In the former case notice brings every person interested in the estate under the jurisdiction of the court. Notice is required to be given of the taking out of letters and of the final settlement of the estate, thus bringing creditors, heirs, and all persons interested within the jurisdiction of the court; and all are bound by the orders and decrees made by the court in the settlement of the estate. But nothing of this kind is contemplated or required by the statute providing for the settlement of a partnership by a surviving partner. Such settle- ment does not have the binding force and effect of a judgment only as to those matters directly presented in the final settle- ment.'" The statute requires the partnership business to be settled within two years unless for good cause shown the court shall grant a longer time. At the end of such time it is the duty of the surviving partner to make a final report to the proper court, and "Mof?att V. Thomson, S Rich. Eq. "* American Bonding Co. v. State, (S Car.) 155, 57 Am. Dec. IZI ; 40 Ind. App. 559, 82 N. E. 548. Mack V. Woodruff, 87 111. 570; ^ Schnell v. Schnell, 39 Ind. App. Shearer v. Shearer, 98 Mass. 107; 556. 80 N. E. 432. Talbot V. Pierce, 14 B. Mon. (Ky.) 195; Gray v. Palmer, 9 Cal. 616. § 463 SURVIVING PARTNERS. 791 to pay the surplus belonging to the deceased partner into court to be paid out upon the order of the judge/'' The executor or administrator of a deceased partner if not himself a member of the firm, may agree with the survivor that the share of the deceased may be ascertained in some particular way, or taken at a certain value, and a final settlement and ac- counting on such basis made between them in good faith will be upheld;"' or the partnership articles may give to the surviving partner an option to take the firm assets at a valuation to be de- termined in a manner prescribed in such agreement.*" § 463. Compensation to the surviving partner. — The rule is that usually a sun'iving partner will not be allowed compensa- tion for winding up the partnership business, and the services must be of an extraordinary and perplexing nature to justify a departure from this rule." Death being one of the risks necessarily incurred at the forma- tion of a partnership, a surviving partner, who winds up the business of the finn, is entitled to no extra compensation for so doing.** While this is the general rvile, yet where a surviving partner performs extra services, in excess of those needed in the mere winding up of the partnership business, he should be compensated therefor.*^ «• Harrah v. State, 38 Ind. App. 495, 7 N. E. 710 ; Terrell v. Rowland, 86 76 N. E. 443, 11 N. E. 747. And for Ky. 67, 4 S. W. 825 ; Maynard v. any unnecessary delay in such settle- Richards, 166 111. 466, 46 N. E. 1138, ment he may be charged interest on 57 Am. St. 145. the funds in his hands. Harrah v. "" Shelton v. Knight, 68 Ala. 598; Davis, — Ind. App. — , 96 N. E. 41. Griggs v. Clark, 23 Cal. 427; Schenkl "Holladay v. Land &c. Co., 6 C. C. v. Dana, 118 Mass. 236; Loomis v. A (U. S.) 560; Sternberg v. Larkin, Armstrong, 49 Mich. 521, 14 N. W. 58 Kan 201, 48 Pac. 861, 11 L. R. A. 505 ; Scudder v. Ames, 89 Mo. 496, J95 14 S. W. 525; Denver v. Roane, 99 *= Rohrbacher's Estate, 168 Pa. St. U. S. 355, 25 L. ed. 476. 158, 32 Atl. 30; Rankin v. Newman, "Sears v. Munson, 23 Iowa 380; 114 Cal. 635. 46 Pac. 742, 34 L. R. A. Xewell v. Humphrey, Zl Vt. 265; Gy- 255 ' ger's Appeal, (>2 Pa. St. IZ, 1 Am. *=' O'Reilly V. Brady, 28 Ala. 530; Rep. 382; Cameron v. Francisco, 26 Freeman v. Freeman, 142 Mass. 98, Ohio St. 190; Calvert v. Miller, 94 792 INDIANA PROBATE LAW. § 464 \\'here the partnership assets consisted of a large landed estate, and the winding up involved its management, paying taxes, de- fending lawsuits, etc., the labor being extraordinan- and per- plexing, compensation was allowed.*® And where the partner- ship was a mercantile finn. one of the surviving partners of which was a lawyer upon whom devolved the collection of the notes and accounts of the firm, he was allowed the usual value of professional sen-ices upon all those upon which it was nec- essai-\- to sue, but nothing upon those collected without suit.*' ^^'he^e a surviving partner dies while engaged in settling the partnership business, his executor or administrator succeeds to such duty and becomes entitled to possession of the effects of the partnership which remain, and is charged with the duty of completing such settlement, and he is entitled to compensation for his services in the perfonnance of such duty, to be paid out of the partnership funds.** § 464. When receiver may be appointed. — If such surviv- ing partner or partners shall fail to file such inventory, appraise- ment, and list of liabilities, and bond as required, or shall fail or refuse to take upon him or themselves the settlement of the busi- ness of such firm, the judge of the court having probate juris- diction, upon petition filed by any one interested in the settle- ment of such partnership, shall appoint a receiver to settle the affairs of such partnership, who shall proceed to settle the same as though a voluntary assignment for the benefit of creditors had been made by the surviving partner or partners of such firm.*^ Any person interested in the settlement of such partnership business may file a petition in the court having probate juris- diction, to have a receiver appointed to settle the same, and shall give the sun'iving partner or- partners ten days* notice of the X. Car. 600 : Harrah v. Davis, — Ind. '* Galbraith v. Tracy, 153 111. 54, 38 App. — 96 X. E. 41. ^'- E. 937, 46 Am. St. 867, 28 L. R. *Hite V. Hite, 1 B. Mon. (Ky.) A. 129n; Dayton v. Bartlett, 38 Ohio 177. St. 357. ^^Vanduzer v. McMillan, 11 Ga. « Burns' R. S. 1908, § 2716. 299. § 464 SUR\-I\TXG PARTNERS. 793 time and place of hearing such petition; and if, upon the hear- ing thereof, the judge of such court shall be convinced that such partnership business is not being properly settled, or that the assets of such firm are being wasted, he shall appoint a receiver as heretofore to settle the same/" An unreasonable dela)- by the sur\-iving partner in the settle- ment of the partnership business, or any unfaithfulness to the trust reposed in him will authorize the court, in a proper case, to appoint a receiver.^^ After a receiver has been appointed the propert}- of the part- nership is in his hands subject to the control of the court ap- pointing him. It is in the custody of the court for the benefit of all the creditors and others interested, and no creditor has the right to have such property levied upon and sold on execution for his benefit. ^- Upon the appointment of a receiver he becomes at once entitled to the control and possession of all the partnership assets, to the exclusion of the sun'iving members of such partnership.""^ It is only by the appointment of a receiver that the settlement of partnership affairs can be taken out of the hands of a surviving partner.^* ^ Burns' R. S. 1908. § 2717. A re- ing partner has made a preference of ceiverappointedforapartnership.be- partnership creditors, and has con- fore such partnership makes a volun- veyed the partnership assets m trust tar^- assignment for the benefit of its for such creditor, a petition for the creditors, has the right to the assets appointment of a receiver for such of the firm against the assignee, partnership, which discloses such a Xeedham v. Wright. 140 Ind. 190, 39 state of facts is msufficient, for if a 2^- £ 5JQ receiver were appointed there would 51 CI-; Skillen V. Jones, 44 Ind. 136; be nothing to receive and the appoint- Story on Partnership. § 347. ment would be a useless ceremony. "Knode v. Baldridge, 11 Ind. 54. Havens, &c., Co. v. Harris, 140 Ind. " BoUenbacher v. First Nat Bank, 2>W, 39 N. E. 49: Harrah v. State, o^ 8 Ind \pp. 12 35 X. E. 403; High on Ind. App. 495, 76 X. E. 443, 11 X. E. Receivers. §§ 538. 541. 747: Webster v. Major, ^o Ind. App. "Xeedham v. Wright, 140 Ind. 202, 71 X. E. 176. 190. 39 X. E. 510. Where a surviv- TITLE TWO WILLS CHAPTER XXIII. EXECUTION, REVOCATION AND PROBATE. § 465. The subject generally. §484. 466. Who may make a will. 467. Power of married woman to 485. make a will. 468. Persons of unsound mind. 486. 469. Infants and aliens. 487. 470. Joint and mutual wills. 488. 471. Suggestions for drawing wills. 489. 472. Objects of testator's bounty. 490. 473. Who may be a beneficiary. 491. 474. Bequest or devise to charitable uses. 492. 475. Execution and attestation of 493. will. 494. 476. Nuncupative wills. 477. The statute construed. 495. 478. Such wills by soldiers and sail- 496. ors. 497. 479. Instruments of a testamentary 498. character. 480. Revocation of wills. 499. 481. Revocation by birth of a child. 500. 482. Effect of child's death. 501. 483. When marriage a revocation. What is not deemed a revoca- tion. Effect of a partial divesting of title. Republication of wills. Probate of wills. Objections to probate. What must be probated. When probated. Custody and production of the will. Proof of the will. Proof by depositions. Preservation and effect of proof. Probating wills of absentees. The effect of probate. Certificate of probate. Record and probate of foreign wills. Lost wills, how established. The degree of proof required. Decree to be recorded. § 465. The subject generally. — It is not the intention un- der Title Two to deal extensively or generally with the subject of wills. An effort at an exhaustive and comprehensive treat- 794 § 465 EXECUTION, REVOCATION AND PROBATE. 795 ment of the law relating to wills would be out of place in work of the scope and character of this one. The various able text- writers on this subject have left very little for a reader to desire. The scope of this and the succeeding chapters includes a review of the statute law of this state upon the subjects considered, together with the decisions of the state courts upon the more common and familiar principles of law and points of practice arising under these statutes; relating chiefly to the execution, probate, revocation, construction, and contest of wills, methods of procedure, etc., touching only upon such points as will most frequently confront the practitioner in this state; placing before him both the statute and case law of Indiana upon the subject of wills and their contest arranged systematically. The term "will," as used in this act, shall be construed to mean all wills, testaments, codicils, and supplemental wills.^ \\"ills may be written or unwritten, an unwritten will being known as a nuncupative will. But whether written or unwritten all wills, to have any force and effect, must be proven and ad- mitted to probate. One author saying: "A will takes its legal validity from its probate ; that is the certification by the court or tribunal clothed with authority for such purpose that it has been executed, published and attested as required by law, and that the testator was of sound and disposing mind. Without such proof it is not a will in the legal sense. "^ The purpose of a last will and testament is to control the disposition of the testator's property after his death in the man- ner he may desire. A will is ambulatory in that it does not become operative or vest any rights in others until after the death of the testator and may therefore be revoked or changed by him at any time. For the power to revoke a will is co-extensive with the power to make one. A revocation is usually accomplished by the cancellation or destruction of the will, or one will may be revoked by another. It is always the last will which is valid.* ' Burns' R. S. 1908, § 3169. ' Kern v. Kern, 154 Ind. 29, 55 N. E. ^Woerner Am. Law Admin., § 214; 1004. Ryan v. Texas &c. R. Co., 64 Tex. 239. 796 INDIANA PROBATE LAW. § 465. The distinguishing characteristics of a will are the intention of making- a testamentary disposition of property, or what is called the animus testandi; and second that of revocability. These es- sentials are to be gathered from the entire instrument regardless of whether it may be called a will or not. If an instrument is so executed that the maker cannot revoke it, it may be good as a deed or contract but it is not a will. A will may be said to be any instrument, executed with the formalities required by law, whereby a person makes a disposi- tion of his property to take effect after his death. It is of the essence of a testamentary disposition of property that it be purely posthumous in operation, since during life the intent of the testa- tor must continue ambulatory.* A codicil is a clause added to a will after its execution, the purpose of which is either to alter, enlarge or restrain the pro- visions of the will. It does not supersede or revoke the will as an after-made will would do, but it is a part thereof, to be con- strued with it as one entire instrument.' Courts are not at liberty in the construction of wills to travel * Heaston v. Krieg, 167 Ind. 101, 77 condition that the devisee shall also N. E. 805, 119 Am. St. 475; McCarty comply with what may be enjoined V. Waterman, 84 Ind. 550; Robinson upon him by any codicil." Tilden v. V. Brewster, 140 111. 649, 30 N. E. 683, Tilden, 13 Gray (Mass.) 103. Sim- 23 Am. St. 265; Cover v. Stem, 67 mons v. Simmons, 26 Barb. (N. Y.) Md. 449, 10 Atl. 231, 1 Am. St. 406. 68, 75. "Between a codicil and a sub- ' Lee V. Lee, 45 Ind. App. 645, 91 N. sequent will, there is this difference E. 507. "A codicil, duly executed, is of construction; a codicil is a republi- an addition or supplement to a will, cation and ratification of so much of and is no revocation thereof, except the prior will as it does not revoke; in the precise degree in which it is in- whereas a new will, (if it provides consistent therewith, unless there be for a full disposition of all the testa- words of revocation. And it is an es- tor's estate), though inconsistent but tablished prima facie rule of con- in part with the former will, and ab- struction, that an additional legacy, solutely agreeing in part, revokes the given by a codicil, is attended with the whole prior will, by substituting a same incidents and qualities as the new and last disposition for the for- original legacy. Upon the same prin- mer one." Brant v. Wilson, 8 Cow. cipal, a devise upon condition that the (N. Y.) 56; Larrabee v. Larrabee, 28 devisee shall 'comply with what is en- Vt. 274; Neff's Appeal, 48 Pa. St. joined upon him in the will' must be 501; Jones v. Jones, 2 Dev. Eq. (N. construed, prima facie, to be upon Car.) 387. § 466 EXECUTION, REVOCATION AND PROBATE. 797 outside and seek evidence of the testator's intention. They are confined to the will, and cannot speculate upon the intention not therein expressed or plainly implied. The inquir}% therefore, is never what the testator meant to express, but what the words he used do express.*^ One of the most important offices which a codicil may perform as part of a pre-existing will, is the effect ascribed to it of con- firming or republishing such will. And for the same reason it operates to establish a will which would otherwise be void for want of compliance with the law regulating its execution and attestation, because the codicil, speaking and operating from the time of its execution, brings the will to it and makes it a will from the date of the codicil. But to have such effect the codicil itself must be duly executed and attested and must refer to the will in such a way as to identify it. Nor is it essential that the codicil be annexed to the will or that it be written upon the same paper as the will." § 466. Who may make a v^rill. — Unless prohibited by law, every person is capable of making a will. The statute provides that "all persons, except infants and persons of unsound mind, may devise by last will and testament, any interest descendible to their heirs which they may have in any lands, tenements, and hereditaments, or in any personal property, to any person or corporation capable of holding the same."* The right of a person to dispose of his property by will is said to be, in this state, an absolute and inherent one.'' « Lee V. Lee. 45 Ind. App. 645, 91 N. will. Bundy v. McKnight, 48 Ind. E. 507. 502 ; Dyer v. Dyer, 87 Ind. 13 ; Dur- '• Woerner Am. Law Admin., § 47. ham v. Smith, 120 Ind. 463, 22 N. E. * Burns' R. S. 1908, § 3112. In or- ZZ2,; Burkhart v. Gladish, 123 Ind. der to make a will it is only necessary ZZl, 24 N. E. 118. that the testator has mental capacity « Addington v. Wilson, 5 Ind. 137, sufficient to know the extent and value 61 Am. Dec. 81 : Xoel v. Ewing, 9 Ind. of his property, the number and 2>7. Every man may naturally choose names of the persons who are the na- the person to whom he would leave tural objects of his bounty, and a his property after his death, so long memory capable of retaining the facts as his right is not limited by some m- necessarv to direct the making of a dispensable obligation. Vattel 116. 79^ INDIANA PROBATE LAW. § 467 A person who is competent to make a will has the absolute right to dispose of all of his property, both real and personal, over and above that portion of it required to pay his debts and expenses, to whomsoever he pleases. He may entirely disin- herit his children if he chooses to do so, and his motive for so doing cannot be called in question/" The right to make a testamentary disposition of property is held to be a right common to civilized people of all ages, and while uniformly regulated by statute, the right is by no means created by the statute. ^^ This statute, too, only declares who may make a will, but does not, in terms, deprive any one of the right. The inference, however, necessarily follows that those under the disabilities named in the statute, are disqualified to make a will.^- It is said, "No person is capable of exercising testamentary power who is, for any reason, incapable of exercising free will."" Grounds of incapacity are said to be, want of sufficient legal dis- cretion; want of liberty or freedom of will; incapacity by reason of crime. ^* The first two grounds are applicable under our statute, but one is not deprived of the right to make a will because of his con- viction for crime. By virtue of this statute it is now held that all persons except infants and persons of unsound mind are made competent to devise by last will and testament. ^^ § 467. Power of married woman to make will. — By the common law married women could not dispose of property by will. This disability was peculiar to the English law and arose out of the fiction that coverture merged the personal existence of "Addington v. Wilson, 5 Ind. 137, "Harrison v. Bishop, 131 Ind. 161, 61 Am. Dec. 81 ; Dean v. Lyon, 8 Ind. 30 N. E. 1069, 31 Am. St. 422. 71. The power of alienation of prop- '- Harrison v. Bishop, 131 Ind. 161, erty is a necessary incident to the 30 N. E. 1069, 31 Am. St. 422. right of property, and was dictated by " Woerner Am. Law. Admin., § 18. mutual convenience and mutual wants. " Williams Exrs. 15. * * * Grotius considers disposition " Hibberd v. Trask, 160 Ind. 498, 67 by will to be one of the natural rights N. E. 179. of alienation. 2 Kent, p. 326. § 467 EXECUTION, REVOCATION AND PROBATE. 799 the wife in that of the husband. The tendency of legislation and judicial construction in America, however, has been away from this doctrine. Our Supreme Court was at first disposed to narrow the construction of the statute, and in construing this section it, in one case, intimates that a general statute giving power to make wills will not be construed to embrace persons under common-law disabilities, but did not decide whether or not, under this statute, a married woman might make a will, hold- ing that this point was not before them.^*^ In a later case," however, this question was brought before the court directly for decision, and it there held that the phrase "all persons" means what it says and that no one is excluded by the statute save those falling within the exception "infants and persons of unsound mind." But the legislature of 1859 put an end to controversy by assuming to place a construction upon this section, saying it was intended to empower, and does empower, married women, as well as all other persons, except infants and persons of un- sound mind, to devise and bequeath, by last will and testament, their real and personal estate to any person or corporation capable of holding the same ;" and such was declared to be the true intent and meaning of this section of the statute;'' following it by a section legalizing all wills previously made since such section had taken effect." This act of the legislature trenched largely upon the province of the judiciar\' of the state and was of questionable authority, to say the least. The Supreme Court has, however, adopted this construction of the statute, and it is now the fixed rule of law in this state that married women may make wills. " Reese v. Cochran, 10 Ind. 195. by the same law makers, authorizing ^' Noble V. Enos, 19 Ind. 72. The married women to hold property, both court says : "The persons that may real and personal separate from their devise are named, that is, 'all persons.' husbands, and to sue alone in matters The statute does not stop at declaring concerning the same, the question nat- that all persons shall have that power, urally arises, whether the term 'all but proceeds to enumerate the excep- persons' will include them." tions, to wit : 'infants, and persons of '* Burns' R. S. 1908, § 3113. unsound mind.' Now, as there are ^^ Burns' R. S. 1908, § 3114. other provisions in the code, enacted 8oo INDIANA PROBATE LAW §468 The consent of the husband is not necessary to her exercise of such power."" His consent to her making a will does not, however, deprive him of such interest in her property as is given him by the statute. ^^ The will of an unmarried woman is re\'oked by her subsequent marriage."' 8 468. Persons of unsound mind. — Persons of unsound mind are by this statute rendered incompetent to make a will. The phrase, "of unsound mind" includes idiots, non compotes, lunatics, and distracted persons,"'"* and has been held to include every species of mental unsoundness.'-* Adhering to this con- struction, the court in another case says: "Partial insanity is necessarily included as one of the forms of mental unsoundness. It is often difficult to decide when eccentricity, or a merely capricious imagination terminates, and when actual mental de- rangement begins; but when a person has become the victim of. a mental derangement, amounting to insanity in any form, we are of the opinion that, under our statute, he is incompetent to make a will.""^ -" Noble V. Enos, 19 Ind. 72. " O'Hara v. Stone, 48 Ind. 417. - Vail V. Lindsay, 67 Ind. 528. ^ Burns' R. S. 1908, § 1356. ^■'Willett V. Porter, 42 Ind. 250; Burkhart v. Gladish, 123 Ind. 2Z7, 24 X. E. 118. "^ Eggers V. Eggers, 57 Ind. 461. The law requires one who would ex- ecute a valid will to possess mind enough to know the extent and value of his property, the number and names of the persons who are the natural objects of his bounty, their deserts with reference to .their conduct and treatment toward him, their capacity and necessity, and that he shall have sufficient active memory to retain all these facts in his mind long enough to have his will prepared and exe- cuted. A person possessed of delu- sions, whose mind is impaired to that degree which the law upon the sub- ject of wills recognizes as amounting to insanity or vmsoundness of mind, is incapable of making a valid will. Burkliart v. Gladish, 123 Ind. ZZ7, 24 N. E. 118. Where, in an action re- sisting the probate of a will because of alleged unsoundness of the testa- tor's mind, and fraud practiced upon him when making the will, it is found that the testator when making the will was of unsound mind, and not overcome by persuasions, importuni- ties, coercion, force or threats, and that he was laboring under no delu- sion as to the amount of his property, a further finding that he was laboring under a delusion that certain of his children, contestors, had treated him badly, will not justify a refusal to ad- § 468 EXECUTION, REVOCATION AND PROBATE. 80I Loss of memory is considered a species of mental unsoundness, and will render a person incompetent to make a will.''' The law, however, recognizes degrees of mental unsoundness, and not every degree is sufficient to destroy testamentary ca- pacity. A person may be possessed of the requisite capacity to make a will and yet have some defect of mind.''^ And it is held that "one's mental powers may be so far impaired as to inca- pacitate him for the active conduct of his estate, justifying the appointment of a guardian for that purpose, and yet he may have such capacity as will enable him to direct a just and fair disposition of his property by will.""® A person may not be of sound mind, but yet be of a disposing mind and capable of making a will. The expression "sound mind" does not mean a perfectly balanced mind. The question of soundness of mind is one of degree.-'' It is said .that a man of sound mind and disposing memory is one who has a full and intelligent knowledge of the act he is engaged in, a full knowl- edge of the property he possesses, an intelligent perception and understanding of the disposition he desires to make of it and of the persons and objects he desires shall be the recipients of his bounty. It is not necessaiy that he should collect these all in mit the will to probate. Hite v. Sims, nieces and nephews than to his sis- 94 Ind. 333. ters, and disinherited an old and in- ^Lowder v. Lowder, 58 Ind. 538; digent sister in part, does not furnish Burkhart v. Gladish, 123 Ind. 337, 24 any evidence of insanity. Conway v. N. E. 118; Lamb v. Lamb, 105 Ind. Vizzard, 122 Ind. 266, 23 N. E. 771. 456, 5 N. E. 171. If a testator has made a rational dis- " Lowder v. Lowder, 58 Ind. 538 ; position of his property, no presump- Durham v. Smith, 120 Ind. 463, 22 N. tion of unsoundness of mind can be E. 333 ; Burkhart v. Gladish, 123 Ind. drawn from the fact that the distri- 337, 24 N. E. 118. bution is unequal. Inequality or in- ^ Harrison v. Bishop, 131 Ind. 161, justice in the disposition of his estate 30 N. E. 1069, 31 Am. St. 422. Where is a circumstance which may be con- the jury is instructed that unnatural sidered, with other circumstances, on provisions in a will may be considered the subject of the testator's mental ca- in connection with other evidence as pacity. Lamb v. Lamb, 105 Ind. 456. bearing on the question of the insan- 5 N. E. 171 ; Roberts v. Abbott, 127 ity of the testator, it is not error to Ind. 83, 26 N. E. 565. instruct the jury that the fact alone "* Freeman v. Easly, 117 111. 317, 7 that the testator gave more to his N. E. 656; Taylor v. Taylor, 174 Ind. 670, 93 N. E. 9. 51 — Pro. Law. 802 INDIANA PROBATE LAW. § 468 one review. If he understands in detail what he is about and chooses with understanding and reason between one disposition and another, it is sufficient for making a will.^° No matter what may have been the condition of the testator's mind at some other time, the inquiry is always directed to his mental condition at the time the will was made. The adjudication of mental unsoundness in proceedings for the appointment of a guardian for a person, conclusively estab- lishes the fact of his inability to manage his estate, but it does not necessarily establish the existence of such unsoundness of mind as would incapacitate him from making a valid will. It furnishes prima facie evidence of such want of mental power, however, and the burden of establishing the validity of a will made by one under guardianship as a person of unsound mind, is, when such validity is properly attacked, upon those who seek to uphold the will.^^ And in such case it is incumbent upon those upon whom the burden of proof rests to show by clear, explicit and satis- factory evidence that at the time of the execution of a will by a person so under guardianship, the maker had the requisite degree of mental capacity to make a valid will.^^ "* Wilson V. Mitchell, 101 Pa. St. 22, Zl N. W. 236. It is not error, in 495; Miller v. Oestrich, 157 Pa. St. a will contest on the ground of the 264, 27 Atl. 742; Thorne v. Cosand, testator's unsoundness of mind, to 160 Ind. 566, 67 N. E. 257; Rarick v. charge the jury that an inquest find- Ulmer, 144 Ind. 25, 42 N. E. 1099 ; ing the testator of unsound mind and Roller V. Kling, 150 Ind. 159, 49 N. E. placing him under guardianship, 948; Wait v. Westfall, 161 Ind. 648, which is in force at the time the will 68 N. E. 271. is executed, "is prima facie evidence ^^ Stevens v. Stevens, 127 Ind. 560, of insanity and incapacity on the part 26 N. E. 1078; Harrison v. Bishop, of the testator to execute the will in 131 Ind. 161, 30 N. E. 1069, 31 Am. question," and that "it would there- St. 422 ; Redden v. Baker, 86 Ind. 191 ; fore be incumbent on those who seek Stone v. Damon, 12 Mass. 504 ; Tay- to establish said will to show by clear, lor V. Taylor, 174 Ind. 670, 93 N. E. 9. explicit and satisfactory evidence that '^ Stevens v. Stevens, 127 Ind. 560, the testator had at the time he exe- 26 N. E. 1078; Harrison v. Bishop, cuted said will such mental capacity 131 Ind. 161, 30 N. E. 1069, 31 Am. and freedom of will and action as are St. 422; Breed v. Pratt, 18 Pick, required to render a will legally (Mass.) 115; Will of Slinger, 72 Wis. valid." The italicized words do not 468 EXECUTION, REVOCATION AND PROBATE. 803 Unsoundness of mind in connection with the making of a will does not mean the same as insanity. ^^ It is only necessary that the testator have mental capacity sufficient to know the extent and value of his property, the number and names of the persons who are the natural objects of his bounty, a sufficient memory capable of retaining the facts necessary to direct the making of a will.^* But when it is once shown that unsoundness of mind exists, such condition is presumed to continue.^" The record of discharge from a guardianship of insanity as cured is only prima facie evidence of such cure.^'' The expres- sion "of unsound mind" as used in our statute means such a render such instruction erroneous. Stevens v. Stevens, 127 Ind. 560, 26 N. E. 1078. ''Wallis V. Luhring, 134 Ind. 447, 34 N. E. 231. An instruction to the jury that a person of unsound mind, all mental defects being included in the word, "unsound," is incapable of making a valid will, whether or not such vmsoundness affected the dispo- sition of the property, is erroneous. Durham v. Smith, 120 Ind. 463, 22 N. E. 333. '* Bundy v. McKnight, 48 Ind. 502 ; Dyer v. Dyer, 87 Ind. 13 ; Durham v. Smith, 120 Ind. 463, 22 N. E. 333; Burkhart v. Gladish, 123 Ind. 337, 24 N. E. 118. Where the evidence in an action to set aside a will tends to prove that the testator was addicted to the excessive use of intoxicating drink; that he was insanely jealous of his wife, a woman of good reputa- tion for chastity, that he persistently denied the paternity of two of his children, and charged that one of them was the child of his son-in-law; that he charged his wife with being too intimate with all of his sons-in- law, as well as with other men, and frequently beat and abused her, on ac- count of her supposed infidelity; that finally he shot her to death and then committed suicide, leaving a written statement proving that he took her life on account of her supposed infi- delity, there being no foundation for his charges against her, the testator's unsoundness of mind at the time of his death is sufficiently shown. Burk- hart V. Gladish, 123 Ind. 337, 24 N. E. 118; Crawfordsville Trust Co. v. Ramsey, — Ind. -*, 98 N. E. 177. ^^Kenworthy v. Williams, 5 Ind. 375; Rush v. Megee, 36 Ind. 69; Wal- lis V. Luhring, 134 Ind. 447, 34 N. E. 231. To enable the jury to determine as to the condition of the testator's mind at the date of the will, it is proper to show its condition at any time prior thereto. Staser v. Hogan, 120 Ind. 207, 21 N. E. 911, 22 N. E. 990. In an action to test the validity of a will, where one of the grounds of contest is unsoundness of mind of the testator at the time the will was executed, conditions prior or subse- quent to the execution of a will are proper evidence in determining the condition of the mind at the time of executing the will. Pence v. Waugh, 135 Ind. 143, 34 N. E. 860. ""Page on Wills 479; Taylor v. Taylor, 174 Ind. 670, 93 N. E. 9. 8o4 INDIANA PROBATE LAW. §468 degree of unsoundness of mind as incapacitates one from making a will according to the standard fixed by the adjudicated cases for testamentary capacity."' In every instance, however, except where the testator, at the time of making his will, is under guardianship as a person of unsound mind, the person is by the law presumed to be sane.*"* But a condition of unsoundness of mind in a testator once estab- lished at a time prior to the making of the will is presumed to continue, and the burden of rebutting such presumption rests with those attempting to uphold the will.^" ''' Blough V. Parry, 144 Ind. 463, 40 N. E. 70, 43 N. E. 560. =" Roller V. Kling, 150 Ind. 159, 49 N. E. 948; Taylor v. Creswell, 45 Md. 422 ; Blough v. Parry, 144 Ind. 463, 40 N. E. 70, 43 N. E. 560. Cartwright v. Cartwright, 1 Phillim. 90, 100, in which Sir Sm. Wynne states the law as follows: "If you can establish that the party afflicted habitually by a malady of the mind has intermissions, and if there was an intermission of the disorder at the time of the act, that being proved is sufficient, and the general habitual insanity will not af- fect it; but the effect of it is this, it inverts the order of proof and of pre- sumption, for, until proof of habitual insanity is made, the presumption is that the party agent like all human creatures was rational; but where an habitual insanity in the mind of the person who does the act is established, there the party who would take ad- vantage of the fact of an interval of reason must prove it." See Williams Extrs. 29 et seq., and numerous English cases cited there. 1 Jarm. on Wills, 37. ''Wallis V. Luhring, 134 Ind. 447, 34 N. E. 231; Raymond v. Wa- then, 142 Ind. 367, 41 N. E. 815; Roller v. Kling, 150 Ind. 159, 49 N. E. 948. The possibility of lucid intervals is in modern time denied by some eminent alienists. But whether the term "lucid interval" is accurate- ly or improperly used, in the scientific sense, is not important for legal purposes. The law recognizes cer- tain conditions of insane persons as enabling them to act intelli- gently and exercise free will; which is not denied by psycholog- ical physicians, but accounted for by them as a temporary mask of the de- lirium, or one of the phases of the disease conditioned by the periodicity of its nature, a fleeting remission of the symptoms rather than a change of the pathological condition. See Whart. & Stille Med. Jurisp., § 61 et seq., 744 et seq. And it is not sufficient to prove sanity before and after the day on which the will was made, but the lucid interval must be proved at the very time. Harden v. Hays, 9 Pa. St. 151 ; Aubert v. Aubert, 6 La. Ann. 104; Saxon v. Whitaker, 30 Ala. 237; Von De Veld v. Judy (Mo.), 44 S. W. 1117; Taylor v. Taylor, 174 Ind. 670, 93 N. E. 9. Complete restoration need not, however, be shown in proving the lucid interval; it is sufficient to prove a restoration of the faculties of the mind sufficient to enable the testator soundly to judge of the act. Boyd v. § 469 EXECUTION, REVOCATION AND PROBATE. 805 § 469. Infants and aliens. — Male infants of the age of four- teen and females at the age of twelve years, could at common law make a valid will disposing of their personal property.*" But no valid devise of real estate could be made under the age at which a valid conveyance of the same could be executed.*^ And where an infant who was old enough to will his person- alty willed it to one who would have been his heir, and at the same time devised his real estate to a stranger, the heir would also take the land.*^ Infancy in this state continues to the age of twenty-one years, and by the foregoing statute is made a disability which prevents one laboring thereunder from making a valid will. The incapacity of infants is said to arise necessarily out of their want of discretion; and that since it is impracticable to as- certain the precise moment when an infant's mind is sufficiently matured to act rationally upon the ordinary affairs of life, the law fixes a definite age at which discretion will be presumed. The limitation is, therefore, an external one, based not so much upon mental incapacity, but arising out of a legal disability.*^ In this state natural persons who are aliens, whether they reside in the United States or any foreign country, may acquire, hold and enjoy real estate, and may convey, devise, mortgage or otherwise incumber the same, in like manner and with the same effect as citizens of this state.** Alienism, under certain restrictions, does not bar one from taking property in this state by will.*^ In the absence of any statute authorizing an alien to dispose of property by will, it is perhaps doubtful if he would possess such right, except it might be under the same conditions and restrictions as those under which he is permitted to take property by will. Eby, 8 Watts (Pa.) 66; see Busw. on ''Kearney v. Macomb, 16 N. J. Eq. Insanity, § 189, and English cases 189; Tongue v. Nutwell, 17 Md. 212, cited, i. e., Creagh v. Blood, 2 Jones 79 Am. Dec. 649. & La. T. 509. *' Woerner Am. Law Admin., § 20. « Co. Litt., 89 b. ; Davis v. Baugh, 1 " Burns' R. S. 1908, § 4010. Sneed (Tenn.) 477. « Burns' R. S. 1908,. §§ 3940, 3941, "4 Kent. Com. 405. 3943, 3944. 8o6 INDIANA PROBATE LAW. § 47O In one case it was decided that an Indian who was a bona fide resident of the United States, although not a citizen, could transfer property by devise/"* § 470. Joint and mutual wills. — From the ambulatory quality of wills it follows that a testator cannot by his will deprive himself by any covenant or stipulations therein of his power to revoke such will. For this reason the rule seems once to have been that a testamentary disposition of property by joint or mutual vvills was ineffectual to convey title to the property. But the weight of modern authority is now that such wills, un- revoked in the lifetime of the makers, are valid as to the separate property of each maker, at his death, or will take effect upon joint property at the death of all. Quoting from a leading work, "Two or more persons may make a joint will, which, if properly executed by each, is, so far as his own property is concerned, as much his will, and is as well entitled to probate upon the death of each as if he had made a separate will. But a joint will made by two persons, to take eff'ect after the death of both will not be admitted to probate during the life of either."*' The will of a husband and wife, though joint in form, is not a joint will, if the property devised belongs to the husband or wife only, and where such will is contingent, it is void if the contingency does not happen. But where the husband and wife had joined to devise, and had executed it by joint will, neither of them can revoke it by making a separate will.** §471. Suggestions for drawing wills. — In drawing wills, the following practical suggestions are made : The draftsman should, instead of adopting the mere routine plan of writing the exact words of the testator, rather make the effort to get at his real purpose, as much litigation is thereby saved. ^ Parent v. Walmsly, 20 Ind. 82. both, leaving the will unrevoked, it " 1 Jarman on Wills, 31 ; Williams can be admitted to probate. Extrs., p. 11; Black v. Richards, 95 "•" Rogers, Appellant, 11 Me. 303; Ind. 184. Owners in common may Allen v. Allen, 28 Kan. 18; Breathitt dispose of their common property by v. Whittaker, 8 B. Mon. (Ky.) 530. a joint will, and, upon the death of § 471 EXECUTION, REVOCATION AND PROBATE. 807 Two leading points are essential in framing the wills of others. First. The legal adviser should fully possess himself of the real purpose of the testator. Second. He should become reason- ably certain, before the will is finally authenticated, that the 'language he adopts as expressing the intention of the testator is fully understood by the testator. Hence, it is of great conse- quence that he adopt the plainest and least involved mode of composition, and also that he avoid unusual technical expressions, so that the testator may fully understand the language put in his mouth. Mr. Jarman suggests the following considerations : 1. That in a devise of real estate, there be accurate descrip- tion, and that where the same estate is described by boundaries, and the name of the occupant, care be taken that both precisely concur. 2. That where an estate is devised to a class not certain to be in existence at the death of the testator, provision be made for the disposition of the intermediate profits of the estate. 3. That where any particular funds are set apart for the pay- ment of debts, it should be clearly defined whether it is the in- tention of the testator to thereby exonerate the general person- alty from being primarily liable to that charge. Instructions for wills should be taken from the testator him- self, rather than from third persons, particularly where such third persons are interested. In the preparation of a will no particular form or phraseology is necessary. It is sufficient however irregular in form or in- artificial in expression if it discloses the intention of the testator to make a disposition of his property to take effect after his death. *^ The technical mandates of the statute, however, as to its execution, signing and attestation, must be complied with, for the courts cannot alone consider the intention of the testator, but in these respects must also consider the intention of the legisla- ** Allen V. McFarland, 150 111. 455, 279; Alston v. Davis, 118 N. Car. 202, yi N. E. 1006; Mitchell v. Donohue, 24 S. E. 15; Fosselman v. Elder, 98 100 Cal. 202, 34 Pac. 614, 38 Am. St. Pa. St. 159. 8o8 INDIANA PROBATE LAW. § 472 ture.^'' It is said is one case that "the legislature has power to prescribe the formalities to be observed in the execution of a will, and by sO' doing does not interfere with the rights of an individual to dispose of his property as he sees fit."°^ A will duly executed, with knowledge of its contents on the part of the testator, is valid, though never read by him, or even if it is written in a language unknown to him/^ A will may be written or printed, or partly written and partly printed, or engraved or lithographed ; and blank spaces left in a will do not necessarily invalidate it.^^ A will may also be written on several disconnected pieces of paper and if taken together they make sense and as an entirety constitute a con- nected instrument the will is valid. Or some disconnected docu- ment or writing may, by reference, be made a part of a will. Such a paper to be incorporated in the will must be in existence at the time of the execution of the will, and must be referred to in the will in such a way as to be reasonably identified by such reference, and so as to show the testator's intention to make it a part of his will.^* § 472. Objects of testator's bounty. — In relation to the ob- jects of the testator's bounty circumspection is necessary. On this subject Mr. Jarman says, the obvious inquiries to be made of a testator, of whose bounty children are to be the objects, are at what ages their shares are to vest, whether the income, or part of it, is to be applied for maintenance until the period for vesting, and if not all applied, what is to become of the excess and whether if any child die in the testator's lifetime or subse- quently, before the vesting age, leaving children, such children are to be substituted for the deceased parents. If the vesting of the shares be postponed till the death of a prior tenant for life; or other possibly remote period, the necessity for providing '"In re Walker's Estate, 110 Cal. ^'^ In re McCabe's Estate, 68 Cal. 387, 42 Pac. 815, 52 Am. St. 104, 30 L. 519, 9 Pac. 554. R. A. 460 ; In re Whitney's Will, 153 '' Walter, Will of, 64 Wis. 487, 25 N. Y. 259, 47 N. E. 272, 60 Am. St. N. W. 538, 54 Am. Rep. 640. 616. " Jarman on Wills, § 18. ^Page on Wills, §§ 161, 162. § 47- EXECUTION, REVOCATION AND PROBATE. 809 for such events is of course more urgent in that case, and it should be ascertained whether if the objects die leaving grand- children or more remote issue, but no children, such issue are to stand in the place of their parents. If a gift be made to a plurality of persons, it should be in- quired whether they are to take as joint tenants, or tenants in common, or, in other words, whether with or without survivor- ship; though it is better, when survivorship is intended, to make the devisees tenants in common, with an express limitation to the survivors, than to create a joint tenancy which may be severed. In all cases of limitation to survivors, it should be most clearly and explicitly stated to what period survivorship is to be re- ferred; that is, whether the property is to go to the persons who are survivors at the death of the testator, or at the period of distribution. It may be observed that where interests not in possession are created, which are intended to be contingent until a given event or period, this should be explicitly stated, as a contrary construc- tion is generally the result of an absence of expression. Ex- plicitness, generally, on the subject of vesting cannot be too strongly urged on the attention of the framers of wills. Where a testator proposes to recommend any person to the favorable regard of another, whom he has made the object of his bounty, it should be ascertained whether he intends to im- pose a legal obligation on the devisee or legatee in favor of such person, or to express a wish without conferring a right. In the former case a clear and definite trust should be created ; and in the latter case, words negativing such a construction of the testator's expressions should be used. Equivocal language, in these cases, has given rise to much litigation. § 473. Who may be a beneficiary. — As wall be seen, the statute provides that "any person or corporation capable of hold- ing the same" may accept property as a beneficiary under any will. All that is required is that the object of the testator's bounty 8io INDIANA PROBATE LAW. §473 should be designated with sufficient certainty, and parol evidence will be admitted to identify the legatee or devisee. ^^ A devise to a county by name is good and sufficiently cer- tain ; a county having the legal capacity to take a devise of prop- erty as a permanent fund in trust for the benefit of a certain class named by the testator,^'' and it makes no difference whether the devise is to the county by name, or to board of commissioners of such county." Municipal corporations, being quasi corporations with power to take and hold real estate for some purposes, may take under a devise.^* A municipal corporation may also be a trustee under a will when the trust created is germane to the purposes for which '"'^ Chappell V. Missionary Society, 3 Ind. App. 356, 29 N. E. 924, 50 Am. St. 276n ; Skinner v. Harrison Tp., 116 Ind. 139, 18 N. E. 529, 2 L. R. A. 137; Grimes v. Harmon, 35 Ind. 198, 9 Am. Rep. 690; De Bruler v. Ferguson, 54 Ind. 549. In a note to Chambers v. Watson, 46 Am. Rep. 77, the law is stated thus : "A misnomer or misde- scription of a legatee or devisee, whether a natural person or a cor- poration, will not invalidate the pro- vision or defeat the intention of the testator, if, either from the will itself or evidence dehors the will, the ob- ject of the testator's bounty can be ascertained. No principle is better settled than that parol evidence is ad- missible to remove latent ambiguities, and when there is no person or cor- poration in existence precisely an- swering to the name or description in the will, parol evidence may be given to ascertain who were intended by the testator. A corporation may be des- ignated by its corporate name, by the name by which it is usually or popu- larly called and known, by a name by which it was known and called by the testator, or by any name or descrip- tion by which it can be distinguished from every other corporation; and when any but the corporate name is used, the circumstances to enable the court to apply the name or descrip- tion to a particular corporation and identify it as the body intended, and to distinguish it from all others and bring it within the terms of the will, may in all cases be proved by parol." '"Craig V. Secrist, 54 Ind. 419; La- grange County V. Rogers, 55 Ind. 297 ; Rush County v. Dinwiddie, 139 Ind. 128, Z7 N. E. 795. "Craig v. Secrist, 54 Ind. 419. Where a testator devises property "to Harrison township," and it is made to appear hy evidence that there are many townships of that name in the state, it is competent, in order to re- move the obscurity in the testator's intention caused by the extraneous circumstances, to show by extrinsic evidence that the testator resided in Harrison township in a certain county, and that he sustained a rela- tion to that township different from all others of like name. Skinner v. Harrison Tp., 116 Ind. 139, 18 N. E. 529, 2 L. R. A. 137. ^' Hayward v. Davidson, 41 Ind. 212; Erskine v. Whitehead, 84 Ind. §473 EXECUTION, REVOCATION AND PROBATE. 8ll the corporation was created, and when the administration of the trust, and the HabiHties it imposes, are not foreign to the objects for which the corporation was instituted.^'-* At common law a corporation had power to take personal property by bequest, but a devise of real estate to it directly was invalid. *''' No restriction is placed by our statutes upon a corpora- tion's power to take personal property by will, and the only quali- fication of its power to take land by devise is that it shall be such a corporation as is authorized by its charter or the law of its creation to take and hold land. With reference to their powers to take and hold land, corporations have been classified as follows : I. Those who are forbidden by the law of their creation to ac- quire and hold real estate, a devise to a corporation of this class would pass no title. 2. Those whose charter, or the law of whose creation is silent as to whether or not they may acquire and hold real estate. As a rule corporations of this class do not possess such power, but if the object or purpose of their creation cannot be accomplished, without their acquiring and holding real estate, the power to do so will necessarily be implied. A devise to such corporation might, under certain circumstances, be valid. It is with reference to corporations of this class that the most difficul- ties and doubts arise. 3. Those who are in some cases and for some purposes authorized to take and hold title to real estate. Having power to take title, a devise to such corporation would be valid." An alien may take and hold title to land by devise, but if he is not a bona fide resident of this state, and has declared his intention in the proper form to become a citizen of the United 357 ; Common Council v. State, 5 Ind. 529, 2 L. R. A. 137 ; Craig v. Secrist, 334; City of Richmond v. Davis, 103 54 Ind. 419; Carder v. Fayette Ind. 449, 3 N. E. 130 ; Skinner v. Har- County, 16 Ohio St. 353 ; Philadelphia rison Tp., 116 Ind. 139, 18 N. E. 529, v. Fox, 64 Pa. St. 169; Chambers v. 2 L. R. A. 137. St. Louis, 29 Mo. 543; First Congre- =" LaGrange County v. Rogers, 55 gational Soc. v. Atwater, 23 Conn. 34. Ind. 297; Rush County v. Dinwiddie, '' 1 Mor. Priv. Corp., § 331. 139 Ind. 128, 37 N. E. 795; Skinner v. " Hayward v. Davidson, 41 Ind. 212. Harrison Tp., 116 Ind. 139, 18 N. E. 8l2 INDIANA PROBATE LAW. § 474 States, his riglit of ownership of such land is Hmited to five years. ^^ A devise or legacy in contravention of law or public policy or for the furtherance of some illegal purpose is void."^ There is no statute in this state requiring parents to make pro- vision for their children in the will. The ancestor may provide by will for each of his descendants, or for some to the exclusion of others, or he may make no provision for any of them. It is said : "It is a privilege of an ancestor to make such inequality of division among his children as he may desire, and if he so desires, he may leave a child without an interest in his estate."" § 474. Bequest or devise to charitable uses. — Testamen- tary gifts to charitable uses are distinguishable from other testa- mentar}^ dispositions in several particulars, owing to the high favor with which the law regards them, and which demands their most liberal construction with the view of accomplishing the in- tent and purpose of the donor, and this to an extent which will uphold and carr\' into effect trusts to charitable uses which cannot be upheld in ordinary cases.*'' Charitable or public trusts, unlike private trusts, are not af- fected by the rule against perpetuities ; but such a trust may be perpetual in its duration.^® The English statute of charitable uses, known as the statute 43, Elizabeth, chapter 14, is not in force in this state, but without reference to this statute, courts of equity here have original and inherent jurisdiction over charities, and apply to them the rules of equity and such other rules as are applicable to charitable uses as courts of equity may exercise under the constitution and laws of the state." "Burns' R. S. 1908, §§ 3940, 3941, 10 Allen (Mass.) 1; Jones v. Haber- 3943, 3944. sham, 107 U. S. 174. 27 L. ed. 401 ; '' Schouler Extrs., § 463. Citv of Richmond v.' Davis. 103 Ind. "Gulp V. Gulp, 142 Ind. 159; 41 X. 449, 3 N. E. 130. ^■J^^- "" Grimes v. Harmon, 35 Ind. 198. 9 '' Woerner Am. Law Admin., § 429. Am. Rep. 690 ; Erskine v. Whitehead, '" Quid V. Washington Hospital, 95 84 Ind. 357. A bequest of a fund to U. S. 303, 24 L. ed. 450; Estate of trustees to form a county benevolent Hmckley, 58 Gal. 457; Odell v. Odell, fund, the trustees being empowered, 474 EXECUTION, REVOCATION AND PROBATE. 813 Neither does the English doctrine of cy pres, in so far as it is a prerogative power, exist here. As our courts possess only ju- dicial power, they cannot undertake to uphold or enforce any charity or gift to a charitable use which requires an exercise of any other than their judicial powers. So if a testator ineffectu- ally dedicates his property to charity, or dedicates it in such a manner that the devise is void, the state has no prerogative right to interfere and dispose of the property, as in England the king would be pennitted to do under the cypres power.®* If the charity does not fix itself upon any particular object but is general and indefinite, and no plan or scheme is prescribed in the will, and no discretion is lodged by the testator in certain and ascertainable individuals, it does not admit of judicial adminis- tration, and the property devised lapses to the next of kin.*^'' upon such plan as they may choose, to apply the annual income to poor families, widows and orphans, new- comers in distress, or persons in such county suflrering from want of cloth- ing, food or fuel, especially in the winter, but not to drunkards, but to their suffering families, if worthy, not to companies or corporations un- less formed for the relief of the poor; not to churches, but to those in dis- tress, and especially to suffering fami- lies from whatsoever county, etc., is a good gift to charit3^ A bequest to the trustees of a certain organized church having trustees, and to their successors, of one thousand dollars, to be put at interest, the interest to be appropriated annually to the suppres- sion of the manufacture, sale and use of intoxicating liquors, the will pro- viding that if said trustees should fail for two successive years to use the interest as directed, then the whole bequest to go to the heirs of the testa- tor, was valid. Haines v. Allen, 78 Ind. 100, 41 Am. Rep. 555. ^ Lepage v. McNamara, 5 Iowa 124 ; Grimes v. Harmon, 35 Ind. 198, 9 Am. Rep. 690; Erskine v. Whitehead, 84 Ind. 357; Attorney General v. Utica, &c. Co., 2 Johns. Ch. (X. Y.) 371. •=• Grimes v. Harmon, 35 Ind. 198, 9 Am. Rep. 690. The mere making of an ecclesiastical organization a trus- tee for an ordinary eleemosynary charity, does not of itself give a sec- tarian character to the charity. An eleemosynary charity is, in the gen- eral scope of its benevolence, essen- tially unsectarian, and can only be made sectarian by having such limita- tions and restrictions placed upon it by the donor as make it so. White Lick V. White Lick, 89 Ind. 136. In order that there may be a good trust for a charitable use, there must always be some public benefit open to an indefinite number, the par- ticular beneficiaries to be selected by the trustee. The seventh and eleventh propositions enunciated in Grimes v. Harmon, 35 Ind. 198, 9 Am. Rep. 690, criticised and disapproved as being inconsistent with the tenth and twelfth propositions therein, which are ap- 8i4 INDIANA PROBATE LAW. §474 The American doctrine in relation to charities does not adopt the EngHsh doctrine of cy pres only in a modified and restricted form. It is, however, established by the weight of authority that there is in our courts of equity a cy pres power which is judicial in its origin and character. ^"^ It is not the exercise of the preroga- tive, but the application by such courts of a liberal rule of judicial construction. As is said : "The difference between the crown and the court is this: the court is governed by known judicial rules of interpretation; the crown is governed by its own good will and pleasure in deducing or imputing such intentions as it sees fit."" There is a wide distinction between a gift to charity and a gift to a trustee to be by him applied to charity. In the first case the court has only to give the fund to the charity designated in the will, which is a ministerial or preroga- tive act, while in the second case it takes jurisdiction of the trus- proved. Erskine v. Whitehead, 84 Ind. 357. ™ Grimes v. Harmon, 35 Ind. 198. 9 Am. Rep. 690; Erskine v. Whitehead, 84 Ind. 357 ; 2 Perry on Trusts, pp. 297, 395. "2 Perry on Trusts, § 727. Gifts made to particular charitable pur- poses, or to charity generally, will be upheld and administered, if there be a trustee with power to make them definite and certain. Erskine v. White- head, 84 Ind. 357. In Moore v. Moore, 4 Dana (Ky.) 354, 29 Am. Dec. 417, the doctrine of cypres and its limitations is stated as follows : "The cypres doctrine of England is not, or should not be, a judicial doc- trine, except in one kind of case; and that is, where there is an available charity to an identified or ascer- tainable object, and a particular mode, inadequate, illegal, or inappro- priate, or which happens to fail, has been prescribed ^n such a case, a court of equity may substitute or sanction any other mode that may be lawful and suitable, and will effectu- ate the declared intention of the donor, and not arbitrarily and in the dark, presuming on his motives or wishes, declare an object for him. A court may act judicially as long as it effectuates the lawful intention of the donor. But it does not act judicially when it applies his bounty to a spe- cific object of charity, selected by it- self, merely because he had dedicated it to charity generally, or to a speci- fied purpose which cannot be effectu- ated; for the court cannot know or decide that he would have been will- ing that it should be applied to the ob- ject to which the judge, in the plenti- tude of his unregulated discretion and peculiar benevolence, has seen fit to decree its appropriation, whereby he, and not the donor, in effect and at last, creates the charity." 474 EXECUTION, REVOCATION AND PROBATE. 815 tee to see that he does not commit a breach of his trust, and to see that the funds are apphed to charitable uses.'" In order that there may be a good trust for a charitable use there must always be some public benefit open to an indefinite number, the particular beneficiaries to be selected by a trustee who is clearly and certainly designated, or who may be clearly as- certained.'^^ The will need not point out any plan by which the objects of the bequest shall be accomplished. It is sufficient if it appoints trustees, with power to appropriate the money in aid of the ob- ject of charity named in the will, in such manner as they shall see fit.''* The first characteristic of a charity is that it is for the general ■-2 Perry on Trusts, § 719. Courts of equity have original and inherent jurisdiction over charities and apply to them the rules of equity and such ether rules applicable to charitable uses as courts of equity may exercise under the constitution and laws of the state, without reference to the statute of 43 Elizabeth. The English statute of charitable uses is not enforced in Indiana, nor the cypres power so far as it is prerogative. The courts of this state have judicial power only, and do not undertake to uphold or to enforce any charity or gift to a charitable use which requires the exercise of prerog- ative power ; but there is a cypres power which is judicial in origin and character, and as such is exer- cised by the courts. In effect, it is a liberal rule of construction. Erskine v. Whitehead. 84 Ind. 357. '' Erskine v. Whitehead, 84 Ind. 357; (Disapproving on this point, Grimes v. Harmon, 35 Ind. 198) ; 2 Perry on Trusts. § 710; Ex parte Lindley, 32 Ind. 367; Craig v. Secrist, 54 Ind. 419; Haines v. Allen, 78 Ind. 100, 41 Am. Rep. 555 ; De ^ruler v. Ferguson, 54 Ind. 549; Rush County v. Dinwiddle, 139 Ind. 128, 2,7 X. E. 795. •* Haines v. Allen, 78 Ind. 100, 41 Am. Rep. 555; Skinner v. Harrison Tp., 116 Ind. 139, 18 N. E. 529, 2 L. R. A. 137 ; Beekman v. Bonsor, 23 N. Y. 298, 80 Am. Dec. 269; Witman v. Lex, 17 S. & R. (Pa.) 88, 17 Am. Dec. 644. In Domestic &c. Missionary Society's Appeal, 30 Pa. St. 425, it is said : "The general rule may be stated thus : In the case of a will making a charitable bequest, it is im- material how vague, indefinite, and uncertain the object of the testator's bounty may be, provided there is a power vested in some one over its ap- plication to those objects." But a will may be so drawn as to refuse all dis- cretion to the trustees, in which case, if the charity be too vague otherwise, it cannot be saved by a presumed in- tention to vest a power of selection. Fairfield v. Lawson, 50 Conn. 501, 47 Am. Rep. 669; Grimes v. Harmon, 35 Ind. 198, 9 Am. Rep. 690. 8l6 INDIANA PROBATE LAW. § 475 benefit and not for the use of a particular individual or for par- ticular individuals."^ The following is accepted as the best legal definition of a charity: "A gift to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bring- ing their minds or hearts under the influence of education or re- ligion, or by relieving their bodies from disease, suffering or con- straint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so de- scribed as to show that it is charitable in its motive."'" § 475. Execution and attestation of will. — The statute pro- vides that: "No will except a nuncupative will shall affect any estate, unless it be in writing, signed by the testator, or by some one in his presence with his consent, and attested and subscribed in his presence by two or more competent witnesses; and if the witnesses are competent at the time of attesting, their subsequent incompetency shall not prevent the probate thereof."" It is necessary to the validity of a will that it shall be attested and subscribed in the presence of the testator by at least two competent witnesses. It is not operative as a will for any purpose until the signature of the testator is affixed to it. It is this final act of execution the witnesses are required to attest. They are then required to subscribe their names to it as witnesses of the fact. To attest is one thing, to subscribe is another ; and the wit- nesses' signatures must be attached to the instrument in the pres- ence of the testator. It is not necessary that the testator should sign the will in the presence of the subscribing witnesses, though if this is not done he should acknowledge such signature in their '= Wright V. Linn, 9 Pa. St. 433; "Burns' R. S. 1908, § 3132. The Kent V. Dunham, 142 Jklass. 216, 7 N. statute does not require that the wit- E. 730, 56 Am. Rep. 667; Trustees of nesses to the execution of a will shall Union &c. Church v. Wilkinson, 36 X. attest it at the testator's request, and J. Eq. 141. such request is not necessary. Dyer "• Jackson v. Phillips, 14 Allen v. Dyer, 87 Ind. 13. (Mass.) 539; 2 Perry on Trusts, § 697. §475 EXECUTION, REVOCATION AND PROBATE. 817 presence.'^ Nor is it necessary that the testator should actually see the attesting witnesses subscribe their names to the instru- ment; if he is in such a situation that he might see them do so if he choose, it will be presumed that he did see them/** Nor is it necessary to the due execution of a will that the tes- tator state to, or in any manner indicate to, the witnesses upon whom he calls to attest such will, that the instrument or docu- ment signed by him is his last will and testament;-" but it is a legal requisite of such attestation that the witnesses know that the paper they sign is the same one signed by the testator.^^ But the testator's name should be signed to the will before the witnesses attach their signatures/^ If, after the will has been signed and attested, an additional clause is, by direction of the testator, inserted in the presence of the witnesses, such clause becomes a part of the will.^^ The testator may sign the will by a mark and it will be suffi- cient notwithstanding he was able to write, and though his name does not appear on the face of the will, or some name other than his appears thereon.®* But the mark, whatever it be, must be made with the intent to execute the will by such mark.®" And where the place for the signature is not fixed by statute signing " Wright V. Wright, 5 Ind. 389 ; state it is not necessary that the sub- Reed V. Watson, 27 Ind. 443 ; McEl- scribing witnesses to a will shall attest fresh V. Guard, 32 Ind. 408; Potts v. it at the same time and in presence of Felton, 70 Ind. 166; Moore v. Steph- each other. Johnson v. Johnson, 106 ens, 97 Ind. 271 ; Patterson v. Ran- Ind. 475, 7 N. E. 201, 55 Am. Rep. 762. som, 55 Ind. 402 ; 1 Redfield on W^ills, ^= Reed v. Watson, 27 Ind. 443. The 247. competency of the attesting witnesses ■'McElfresh v. Guard, 32 Ind. 408; to a will is presumed until the con- Turner V. Cook, 36 Ind. 129. trary is shown. Herbert v. Berrier, '" Brown v. ^IcAlister, 34 Ind. 375 ; 81 Ind. 1. Turner v. Cook, 36 Ind. 129 ; 1 Red- '' Wright v. Wright, 5 Ind. 389. field on Wills, 223. ^ Cleveland v. Spilman, 25 Ind. 95 ; =" Turner v. Cook, 36 Ind. 129. The Rook v. Wilson, 142 Ind. 24, 41 N. E. attestation of a will thus, "signed and 311, 51 Am. St. 163; In re Guilfoyle, sealed in the presence of," with the 96 Cal. 598, 31 Pac. 553, 22 L. R. A. signatures of two witnesses, is suf- 370n. ficient in form. Herbert v. Berrier, "" Plate's Estate, 148 Pa. St. 55, 23 81 Ind. 1 ; Hallowell v. Hallowell, 88 Atl. 1038. 23 Am. St. 805. Ind. 251. Under the statutes of this 52— Pro. L.\w. 8l8 INDIANA PROBATE LAW. § 475 below the attestation clause, or before the date, or after a blank space does not invalidate a will.*"^ The will must be attested by two competent witnesses, by which is meant they must be competent persons to testify in court, and not disqualified by interest, relationship or mental incapacity. And if competent at the time he attested the will, although he afterwards became incompetent the validity of the will is not affected thereby.^^ One named as executor in a will, if not a bene- ficiary therein, is a competent witness.^** The interest which disqualifies a witness is a beneficial one, and in one case the court held that where the husband was a bene- ficiary under the will that the wife was not competent as a witness thereto.'^" But in another case it declined to say whether, where the wife was a beneficiaiy, the husband was a competent witness or not."** While it is not necessary to the validity of a will that the sub- scribing witnesses should know that the instrument they attest is a will; yet, in the absence of proof to the contrary, they will be presumed to have had such knowledge when they attested it. The witness must be understood to attest not merely the act of signing, but also the mental capacity of the testator to sign. While a subscribing witness may be heard to impeach the will yet if he assumes such an attitude he does so at the peril of his repu- ** Younger v. Dufifie, 94 N. Y. 535, isdictions that in such case the legacy 46 Am. Rep. 156; Flood v. Pragoff, to the wife of the attesting witness is 79 K}^ 607 ; Gilman v. Gilman, 1 Redf. void, but such witness is competent ; (N. Y.) 354. while in other jurisdictions it has " Wisehart v. Applegate, 172 Ind. been held that an attesting witness, 313, 88 N. E. 501. who is the husband or wife of the leg- ** Wisehart v. Applegate, 172 Ind. atee, is absolutely incompetent to tes- 313, 88 N. E. 501 ; Hiatt v. McColley, tify as a witness, and the will is void. 171 Ind. 91, 85 N. E. 772. 1 Underbill, Wills, § 206. We are not * Belledin v. Gooley, 157 Ind. 49, required to decide and do not decide 60 N. E. 706. in this case whether said Jeffers was • "^ Wisehart v. Applegate, 172 Ind. a competent witness to said will, be- 313, 88 N. E. 501. "In this case the cause, as we have already shown, two wife of the attesting witness Jeffers of said attesting witnesses, Kimberlin is not the only beneficiary under said and Brooks, were competent witnesses will, but there are nine other benefi- when they attested said will." ciaries. It has been held in some jur- 475 EXECUTION, REVOCATION AND PROBATE. 819 tation for candor and veracity." One should only subscribe as witness when he can testify without reserve in favor of the will and its proper execution, and the true interest of every rational testator requires that witnesses be procured who will stand reso- lutely by the transaction against all opposition to the will."^ In reading this section of the statute it will be noticed that it does not require that the witnesses shall attest and subscribe the will at the request of the testator.*'^ ""■ Stevens v. Leonard, 154 Ind. 67, 56 X. E. 27, 77 Am. St. 446n. In Scribner v. Crane, 2 Paige (N. Y.) 147, Chancellor Walworth said : "No person is justified in putting his name as a subscribing witness to a will un- less he knows from the testator him- self that he understands what he is doing. The witness should also be satisfied, from his own knowledge of the state of the testator's mental ca- pacity, that he is of sound and dispos- ing mind and memory. By placing his name to the instrument, the wit- ness, in efifect, certifies to his knowl- edge of the mental capacity of the testator; and that the will was exe- cuted by him freely and understand- ingly, with a full knowledge of its contents. Such is the legal effect of the signature of the witness when he is dead, or is out of the jurisdiction of the court." "It seems to be sup- posed," says Judge Redfield, "that they" (the subscribing witnesses to a will) "are only witnesses to the act of signing. But when it is considered that the witnesses to a will must cer- tify to the capacity of the testator, as well as to the act of execution, the transaction begins to assume a some- what different aspect. One who puts his name as a witness to the execu- tion of a will, while he was conscious the testator was not in the possession of his mental faculties, places himself very much in the same attitude as if he had subscribed, as witness, to a will which he knew to be a forgery, which every honorable man could only re- gard as becoming accessory to the crime by which the will was fabri- cated; so that it is not improbable that the want of proper appreciation of the discredit resulting from the act of becoming a witness to the execu- tion of a will, by one confessedly in- competent to the proper understand- ing of the instrument, may, and prob- ably does, result chiefly, with us, from the general misapprehension of the law upon the subject, rather than from any settled disposition to disre- gard its dictates if correctly under- stood." 1 Redfield on Wills (note), p. 96. '•'=Schouler on Wills, § 181; Pence V. Waugh, 135 Ind. 143, 34 N. E. 860. A writer of great authority says: "The signature of an attesting wit- ness, when proved, is evidence of everything upon the face of the in- strument, for it is to be presumed that the witness would not have subscribed his name in attestation of that which did not take place; and where there are several attesting witnesses, all of whom are accounted for, proof of the handwriting of any one is sufficient without proving that of the rest." Starkie on Ev. (10th Am. ed.), p. 519. °'Bundy v. McKnight, 48 Ind. 502; 820 INDIANA PROBATE LAW. § 475 It is no valid objection to the execution of a will that the tes- tator's signature was affixed thereto at his direction by some other person. The testator's name may even be written by one of the subscribing witnesses at such testator's request.®* No precise form of attestation is required; any form will be sufficient which shows that the testator's signature was affixed or by him acknowledged in the presence of the witnesses. ^^ There are numerous cases to be found which hold that no attestation clause is necessary.®*^ The signatures of the witnesses constitute a sufficient attesta- tion. The validity of the execution of the will depends not on the attestation clause, but on the conformity of such execution to the requirements of the statute and the testimony of the sub- scribing witnesses.®^ It is not necessary that the witnesses who attest and subscribe their names to a will should do so at the same time, nor at the same place, nor in the presence of each other. It is sufficient if each witness attest and subscribe his name in the presence of the testator. ^'^ If a will has been properly signed by the testator and duly at- tested and subscribed by at least two competent witnesses, it is not necessaiy to its validity that it should be sealed. ®° The date is not a material part of a will. It will be held valid Herbert v. Berrier, 81 Ind. 1. Where that this, as a ground of contest after one expresses a wish to make a will, probate, was frivolous. Hallowell v. directs it to be prepared, and this Hallowell, 88 Ind. 251. having been done, signs it, a request ''''' Berricklow v. Stewart, 163 Ind. by the person who prepared it, made 438, 72 N. E. 128 ; Herbert v. Berrier, in the hearing of the testator, that 81 Ind. 1 ; Underbill Wills, §. 200. persons shall attest it, not objected to, ^'Johnson v. Johnson, 106 Ind. 475, is in law a request of the testator. 7 N. E. 201, 55 Am. Rep. 762; Dyer v. Dyer, 87 Ind. 13. Hayes v. West, 37 Ind. 21. If ** Herbert v. Berrier, 81 Ind. 1 ; one who subscribes a will as an Cleveland v. Spilman, 25 Ind. 95. attesting witness be competent for ^ Herbert v. Berrier, 81 Ind. 1. that purpose he is a fit person to write ^Jarman Wills, p. 763, note. The the testator's name thereto at his re- name and seal of the testator ap- quest. Herbert v. Berrier, 81 Ind. 1. peared after the attestation clause on ^^ Doe v. Pattison, 2 Blackf. (Ind.) the right, with the signatures of at- 355. testing witnesses on the left. Held, § 47^ EXECUTION, REVOCATION AND PROBATE. 82 1 without any date, or a wrong one. If the actual time of its exe- cution should become material, that fact may be established by parol proof/ The power to make wills, the manner of their execution, and their efficiency when made, are matters of statutory regulation;^ and where the last will of a testator has been executed and at- tested in another state, and such testator afterward becomes domiciled in this state and dies here, the due execution of such will must be determined by the laws of this state.^ A will executed on Sunday is valid.* All instruments testa- mentary in their character that make or attempt to make a dis- position of property after the death of the person executing them must be executed with the same formalities as is required by wills. ^ Where a will has been prepared and signed by the testator a request made by the person who prepared the will, made in the presence of the testator, to persons to attest his signature as wit- nesses, is equivalent to a request by the testator.® § 476. Nuncupative wills. — A nuncupative will is defined to be an oral testament, declared by a testator in extremis before a sufficient number of witnesses, and afterwards reduced to writing.'^ While such wills are of Roman origin, they were recognized by the common law.^ At common law, however, only personal ^ Wright V. Wright, 5 Ind. 389 ; Jar- cation on that day. Rapp v. Reeh- man W^ills, p. 122. ling, 124 Ind. 36, 23 N. E. Ill, 7 L. R. - Dyer v. Dyer, 87 Ind. 13. A. 498. ' Patterson v. Ransom, 55 Ind. 402. ^ Moore v. Stephens, 97 Ind. 271 ; 'Rapp V. Reehling, 124 Ind. Z(), 23 McCarty v. Waterman, 84 Ind. 550; N. E. m, 7 L. R. A. 498 ; Bennett v. Wolfe v. Wilsey, 2 Ind. App. 549, 28 Brooks, 9 Allen (Mass.) 118; Beiten- N. E. 1004. man's Appeal, 55 Pa. St. 183 ; George " Dyer v. Dyer, 87 Ind. 13. V. George, 47 N. H. 27. The drafting ' Wharton Law Die, 531. and execution of a will on Sunday * Sandars Just. 243 ; Cowp. 90. The does not come within the definition of Institutes of Justinian provided that "common labor," so as to make it a if any one wished to make a testa- penal offense to be found engaged in ment valid by the civil law, without common labor, or in one's usual avo- writing, he might do so if, in the pres- 822 INDIANA PROBATE LAW, 476 property could be passed by an oral will.® It was not at first nec- essary that such wills should be made in extremis. But as nun- cupative wills came to be made the vehicles for the perpetration of gross frauds, great restrictions were thrown around their making, proof and construction both by the statute of frauds and the statute of wills. ^" At first, owing to the illiteracy of the times, nuncupative wills were favorably considered. ^^ But they are not now favorites of the law and cannot be established except upon strict proof and compliance with all the requirements of the law, and are restricted to cases falling clearly within the reason of the statute.^* Such will can, under no circumstances, revoke a written will.^^ No particular form is prescribed for such wills, but the intent ence of seven witnesses, he verbally declared his wishes, and such will would be perfectly valid. "Co. Litt. 3; 4 Kent. 516. Godol- phin, p. 13. "Testaments are called nuncupative when the testator, with- out any writing, doth declare his will before a sufficient number of wit- nesses; and such nuncupative will is of as great force and efficacy (except for lands, tenements and heredita- ments) as any written testament. Such testaments are supposed to be of the greatest antiquity, and far more ancient than written wills, as be- ing in use and practice before letters were known." '"Prince v. Hazleton, 20 Johns. (N. Y.) 502, 11 Am. Dec. 307, the leading American case on nuncupative wills ; Ellington v. Dillard, 42 Ga. 361 ; 2 Bl. Com. 500. "When a man is sick, and for fear that death or want of mem- ory should surprise him, that he should be prevented if he stayed the writing of his testimony, desires his neighbors and friends to bear witness of his last will, and then declares the same presently by word." Bacon's Abr. Wills, 305. Such will is defined by another ancient writer to be "where the testator lieth languishing for fear of sudden death, dareth not to stay the writing of his testament, and, therefore, he prayeth his curate and others, his neighbors, to bear wit- ness of his last will, and declareth by word what his last will is." Perkins, § 476. " Swinburne on Wills, pt. 1, § 12, par. 6; Nab v. Nab, 10 Mod. 404. " Pierce v. Pierce, 46 Ind. 86; Scaife V. Emmons, 84 Ga. 619, 10 S. E. 1097, 20 Am. St. 383 ; Ridley v. Coleman, 1 Sneed (Tenn.) 616; Jones v. Norton, 10 Tex. 120; Biddle v. Biddle, 36 Md. 630; Woods v. Ridley, 27 Miss. 119. The factum of a nuncupative will re- quires to be proved by evidence more strict and stringent than that of a written one, in addition to all the sev- eral requisites to its validity, under the statute of frauds, being duly proved to entitle it to probate. Le- mann v. Bonsall, 1 Addams 147. ^ Brook V. Chappell, 34 Wis. 405, McCune v. House, 8 Ohio 144, 31 Am. Dec. 438. § 476 EXECUTION, REVOCATION AND PROBATE. 823 to make a will must be plain. It must, however, be made by spoken words or signs, and may be made in answers to ques- tions." Nor were there originall}^ any particular formalities required in making- such wills, but this is now changed by statute, and the formalities of execution required by the statute must be strictly observed.^^ In this state those who may make such wills may be divided into the privileged and the unprivileged. To the first class belong soldiers and sailors who may dispose of all personal property in their possession actually, including their wages. The other class is limited in amount to one hundred dollars of personal property. As to this latter class, the statute provides that, "No nuncupative will shall be valid when more than the value of one hundred dol- lars is bequeathed, nor, unless it be made in the last sickness of the testator, and the subject thereof be reduced to writing within fifteen days after it shall have been declared and proved by two competent witnesses, who shall have heard the testator, in effect, request some one present to bear witness thereto; and no such nuncupative will shall be proved after six months from the death of the testator, nor until his widow and heirs shall have reason- able notice of the time and place of proving the sanie."^'' "Hubbard v. Hubbard, 8 N. Y. 196; do leave some understanding also of Mulligan v. Leonard, 46 Iowa 692; his will and meaning." Starrs V. Mason, 32 La. Ann. 8; In re ^^ Succession of Dorries, Zl La. Yarnall's Will, 4 Rawle (Pa.) 46, 26 Ann. 833; Arnett v. Arnett, 27 111. 247, Am. Dec. 115; Harrington v. Stees, 81 Am. Dec. 227; Pierce v. Pierce, 46 82 111. 50, 25 Am. Rep. 290; Lucas v. Ind. 86. A nuncupative will cannot Goff, 2)1 Miss. 629 ; Campbell v. Camp- be established where neither the bell, 21 Mich. 438. Swinb., Part I, § words nor their substance, as used by 12 ; Part VII, § 26. "As for any pre- the alleged testator, were committed cise form of words, none is required; to writing by any one as a proof of a neither is it material whether the tes- bequest, or to be preserved as such, tator do speak properly or improperly, and no proof was made of a request so that his meaning do appear, as by the testator to the bystanders to hath been heretofore confirmed by di- bear witness that the words used were vers examples, but it is not sufficient his will. Taylor's Appeal, 47 Pa. St. for the testator to leave a sound in 31. the ears of the witnesses, unless he " Burns' R. S. 1908, § 3133. A paper 824 IXDIAXA PROBATE LAW §477 One of the most important provisions of this statute is that such will must be made during the last sickness of the testator, and sometimes it is a matter of no little difficulty to determine just when a person comes within this provision. § 477. The statute construed. — Nuncupative wills should be restricted to cases falling clearly within the language of the statute. Under this section property bequests cannot exceed in value one hundred dollars, and the will must be made during the last sickness of the testator, and reduced to writing within fifteen days after such testator has so declared his intention. It must be proved by two competent witnesses who were recjuested to bear witness thereto, or heard the request, in effect, made by the testa- tor, and such proof must be made within six months after the testator's death, and after reasonable notice to his widow and heirs." No words can be sustained as a nuncupative will, unless the person using them lias the intention of making them his will, and writing declared and signed as his will by a person who was sick, but not in extremis at the time, and at- tested and witnessed, whatever else it may be considered, is in no sense a nuncupative will. Ellington v. Dillard, 42 Ga. 361. A text writer says : "In the majority of states it is held that the term 'last illness' means an illness so violent that the testator had not the time, opportunity and means at hand, after making his oral will to make a written will in legal form." And in other states, he says, it is held that a vv'ill made during the last illness, as already defined, is a valid nuncupative will, even though testator had oppor- tunity, after making such will before his death, to make a written will. It will be observed that our statute uses the words "last sickness" instead of "last illness." These words, however, are synonymous. The probability is that, following a rule of a strict con- struction, our courts will hold, with the majority, that if a testator has the time and opportunity and means at hand, after he has made an oral will, to have reduced it to writ- in'/, it cannot be admitted as a vaHd nuncupative will. It is probable that no definite rule can be given on this subject, but such case will be governed largely by the circumstances surrounding it. '' Pierce v. Pierce, 46 Ind. 86. A will offered as a nuncupative will, which was made nine days before the death of the testator, cannot be ad- mitted to probate where there is clear proof that such testator had, during such nine days, both time, capacity and opportunity to have made a writ- ten will. Carroll v. Bonham, 42 N. J. Eq. 625, 9 Atl. 371. And so where under like circumstances six days in- tervened before the testator's death. Morgan v. Stevens, 78 111. 287. 477 EXECUTION, REVOCATION AND PROBATE. 825 believes that he is making a will." Mere verbal instructions and directions for drawing up a written will, although made in the presence of a proper number of witnesses, do not constitute a nuncupative will." It is considered indispensable to the validity of such will that the testator should request some of those present to bear witness that such was his last will, or do something which is equivalent to such request.-" In reducing such will to writing the exact words of the verbal declaration of the testator need not be preserved, but the sub- stance of what is said by him must be retained.-^ It must be reduced to writing within the period required by the statute and shown to and approved by each of the attesting wit- nesses.^^ Where the statute requires two witnesses, its requirements are not satisfied by making the same oral declaration to one witness at one time and the other at another time."^ "Gibson V. Gibson, Walk. (Miss.) 364; Mulligan v. Leonard, 46 Iowa 692. "Dockum V. Robinson, 26 N. H. 372 ; Lucas v. Goff, 33 Miss. 629. An oral will must substantially conform to the law, and it must clearly appear that a will was intended. Where A., a few days before her death, stated how she wished her property di- vided, but did not ask any one present to keep in mind that this was her will, it was held insufficient as an oral will. Ridley v. Coleman, 1 Sneed (Tenn.) 616. -'"Arnett v. Amett, 27 111. 247, 81 Am. Dec. 227; Sampson v. Browning, 22 Ga. 293; Babineau v. Le Blanc, 14 La. Ann. 729; Biddle v. Biddle, 36 Md. 630; Dawson's Appeal, 23 Wis. 69; Pierce v. Pierce, 46 Ind. 86; Broach v. Sing, 57 Miss. 115. "^ Landry v. Tomatis, 32 La. Ann. 113; Marks v. Bryant, 4 H. & M. (Va.) 91. -Welling V. Owings, 9 Gill (Md.) 467. ^Wester v. Wester, 5 Jones (N. Car.) 95; In re Yarnall's Will, 4 Rawle (Pa.) 46, 26 Am. Dec. 115; Offutt V. Offutt, 3 B. Mon. (Ky.) 162, 38 Am. Dec. 183 ; Prince v. Hazleton, 20 Johns. (N. Y.) 502, 11 Am. Dec. 307. Nuncupative wills or testaments (which have a place in the Roman civil law) are so called from nuncu- pare, to name, declare or make a sol- emn declaration, because the testator declares his will in extremis before a sufficient number of witnesses whose oral proof must afterwards establish it. These verbal wills offer great temptation to fraud and perjury, be- sides occasioning much honest error, and the need of them lessens as the art of penmanship becomes more uni- versal and writing materials abound. The Statute of Frauds, 29 Car. II, ch". 3, laid them under various restric- tions ; and the tenor of legislation, 826 INDIANA PROBATE LAW. § 478 § 478. Such wills by soldiers and sailors. — Wills made by soldiers in actual military service and mariners at sea are con- strued with greater liberality than nuncupative wills of other persons. The ordinary formalities of executing nuncupative wills were, by the civil law, dispensed with in favor of soldiers, and such wills, by them, were held valid, although they should neither call the legal number of witnesses, nor observe any other of the usual formalities in the execution of such instruments, and this privilege was also extended to the naval service.'* Our statute provides that "nothing contained in this chapter shall prevent any soldier, in actual military service, nor any mar- iner, at sea, from disposing of his personal estate, in his actual possession, and his wages, by a nuncupative will."-^ By this sec- tion two classes of persons are authorized to make a nuncupa- tive will, soldiers, in actual military service, and mariners, at sea. Such persons may dispose of their personal estate in their actual possession, and their wages, by such a will. A soldier must have been actually accepted and regularly mustered into military serv- ice to entitle him to the privilege granted by this statute."*^ Only personal estate in the actual possession of such person can be English and American, at the present on this point that the term "soldier" day is to invalidate them altogether, embraces every grade, from the pri- except as to soldiers in actual military vate to the highest officer, and in- service and mariners at sea. Schouler eludes the gunner, the surgeon, or the on Wills, § 6. general; and the term "mariner" ap- '* 1 Redf . on Wills, 193 ; Ex parte plies to every person in the naval serv- Thompson, 4 Bradf. (N. Y.) 154. ice, from the common seaman to the The opinion in this case contains a captain or admiral. But it does not concise review of the history of nun- include mariners, though at sea, virho cupative wills which may be consulted are so as passengers, nor soldiers in by those interested in the question of time of peace, or when not in actual unwritten wills. Woerner Am. Law service. But by actual service is not Admin., § 46, says : "In the absence meant that he should be engaged in or of statutory regulations on the sub- on the eve of a battle; if he is in the ject, the usual conditions to nuncupa- enemy's country, or under military or- tive wills are not applicable to the ders, whether in camp or campaign wills of soldiers or mariners; the sin- service, he is in actual military serv- gle question being whether the de- ice; and so if he be at the time in a ceased comes within the class of per- hospital." sons under consideration; namely, ^ Burns' R. S. 1908, § 3134. whether he was a soldier in actual ^ Pierce v. Pierce, 46 Ind. 86. service or a mariner at sea. It is held § 47^ EXECUTION, REVOCATION AND PROBATE. 827 disposed of by nuncupation; a nuncupative will made under the provisions of this section of the statute cannot pass the title to real estate."^ It is not necessary that wills made by these classes should be made in extremis to be valid.^* And the term '"soldier" embraces those in every militaiy grade, no heed being paid to rank.-^ The term "mariner" includes those either in the navy or merchant service, to the cook or purser, as well as to the sailors.^'' A soldier must be in actual military service. A volunteer en- rolled, but not accepted and mustered into service does not fall within the intention of the statute. ^^ But a soldier who falls sick while upon the march, and soon after dies in the hospital, is re- garded as in actual military service."- A soldier at home on a furlough, however, cannot make a valid nuncupative will.^^ A mariner must be at sea. The privilege, however, continues while the ship is in harbor,^* or to seamen who may be tempo- rarily on shore,^^ but not a sailor en route to his ship, nor in service upon a river. ^^ This statute prescribes no particular mode of making such wills, nor does it desigTiate the number of witnesses required. It has been held that a soldier's will may be established by the testi- mony of one witness.^^ Nor is it necessary that an executor be named in such will.^* =• Pierce v. Pierce, 46 Ind. 86. '• Gould v. Safiford, 39 Vt. 498. The "*Van Deuzer v. Gordon, 39 Vt. language of the statute where it is 111; Leathers v. Greenacre, 53 Me. prescribed need not be used. A mar- 561 ; Ex parte Thompson, 4 Bradf . iner at sea, in his last sickness and (N. Y.) 154. within an hour of his death, being ^ Schouler Wills, § 366. asked what disposition he wished to ** Hubbard V. Hubbard, 8 N. Y. 196; make of his propertj% replied: "I Morrell v. Morrell, 1 Hag. 51. want my wife to have all my personal ^ Pierce v. Pierce, 46 Ind. 86 ; propertj-." This declaration was made Leathers v. Greenacre, S3 Me. 561. in the presence of four witnesses, and ^- Gould V. Safiford, 39 Vt. 498. the testator was at the time of the ^ In re Will of Smith, 6 Phila. declaration of sound mind and mem- (Pa.) 104. ory and under no restraint. This was ^* Hubbard v. Hubbard, 8 N. Y. 196. held to be a good nuncupative will. "" Goods of Lay, 2 Curt. 144. Hubbard v. Hubbard, 12 Barb. (N. ^Warren v. Harding, 2 R. L 133; Y.) 148. Gwin's Will, Tuck. (N. Y.) 44. ^^ Hubbard v. Hubbard, 8 N. Y. 196. 828 INDIANA PROBATE LAW. 479 § 479. Instruments of a testamentary character. — An in- strument of conveyance which has been executed according to the statute which is to operate in the Hfetime of the grantor, and which passes any estate in the property during the grantor's Hfe, though the absolute enjoyment of the estate is postponed until after the grantor's death, is a deed and not a will.^^ All such will be invalid as wills unless they have been executed and attested by two or more witnesses, with such formality as is required in the case of wills.'*" When an instrument on its face, and in its true character ap- pears to be a will, but has not been properly attested, the fact that it was never revoked during the life of the maker will give it no ^'^ Spencer v. Robbins, 106 Ind. 580, 5 N. E. 726; In re Will of Diez, SO N. Y. 88; Gates v. Gates, 135 Ind. 272, 34 N. E. 957; Owen v. Williams, 114 Ind. 179, 15 N. E. 678. In Stroup v. Stroup, 140 Ind. 179, 39 N. E. 864, 27 L. R. A. 523, it is said : "In 19 Gent. L. J. 46 will be found an ex- tended collection of the cases upon the subject of deeds of a testament- ary character, and there, as in the cases we have cited, it is clearly and iirmly settled that the pivotal question is the intention of the grantor. If to postpone title and enjoyment until after his death, it is testamentary; if to confer title and postpone the enjoy- ment thereof, it is a deed." The court cites Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147; Leaver v. Gauss, 62 Iowa 314, 17 N. W. 522; Turner v. Scott, 51 Pa. St. 126. And in Wilson v. Garrico, 140 Ind. 533, 49 Am. St. 213n, 40 N. E. 50, the court says: "Upon the other hand, the learned counsel for appellee say that they do not controvert but what the instru- ment in question was intended by the parties as a deed, and not as a will, and concede that it has all the formal- ities of the former. But they contend that it was the evident purpose and intent of the grantor to reserve all the estate which he intended to convey, and that the deed was not to take ef- fect until after the death of himself and wife, and that hence it must be held to be testamentary in its charac- ter, and therefore void for the reason that it is not executed in accordance with requirements of the statute on wills. The instrument in question calls for a judicial construction, and in this the court must seek for and be guided by the intention of the grantor. *" Moore v. Stephens, 97 Ind. 271 ; McGarty v. Waterman, 84 Ind. 550; Wolfe V. Wilsey, 2 Ind. App. 549, 28 N. E. 1004. Where notes, payable at the death of the testator, were folded up with his will and remained in his possession at the time of his death, and were clearly and fully identified, they formed part of the will. It was not important that there had been no delivery of the notes. Their existence as a writing of a character that could be incorporated in the will, and their identification, satisfied all require- ments. A schedule signed by a wit- ness to a will cannot be regarded as a part of the will, unless it is in some 479 EXECUTION, REVOCATION AND PROBATE. 829 validity after his death. And until such an instrument has been admitted to probate, it can neither operate to vest or establish any right, nor can it be used as evidence of any right claimed under it.*^ An instrument testamentary in character, though invalid as a will, will be given some effect if possible. The rule is that unless an instrument, which has been fully executed from every point of view seems to be a nullity, it will not be intended that the parties meant that it should be invalid, and if possible some effect will be given it.*^ One text writer deduces from the authorities these rules: 1. That if it were the writer's intention to convey benefits which would be conveyed if the paper were a will, and that such convey- ance should take effect only in case of his death, then, whatever be the form, it may be admitted to probate as testamentary. 2. That instruments in their terms dispositive are entitled to pro- way identified. Fickle v. Snepp, 97 Ind. 289, 49 Am. Rep. 449n. "Moore v. Stephens, 97 Ind. 271; State V. Joyce, 48 Ind. 310; Pitts v. Melser, 72 Ind. 469. A written con- tract whereby A agreed with B that, if the latter wovild maintain the for- mer during life, all the personal prop- erty that might belong to A should, at his death, become the property of B, did not on A's death transfer the property to B, said contract not being attested as is required of a will. Mc- Carty v. Waterman, 84 Ind. 550. "Spencer v. Robbins, 106 Ind. 580, 5 N. E. 726; Gates v. Gates, 135 Ind. 272, 34 N. E. 957 ; Wolfe v. Wil- sey, 2 Ind. App. 549, 28 N. E. 1004; Gaviness v. Rushton, 101 Ind. 500, 51 Am. Rep. 759; Price v. Jones, 105 Ind. 543, 5 N. E. 683, 55 Am. Rep. 230. Where the grantor signs and acknowledges a voluntary deed to his children as grantees, in consideration of natural love and affection, and, without having such deed recorded in the proper recorder's office, seals it up in an envelope and deposits the same with his agent to be delivered to the grantees after his death, and where such deed, by its terms, is not to take effect until after the grantor's death, the deed is an attempted testamentary disposition of the land described therein, and, if not executed with the legal formalities of a will, is inopera- tive to pass the title to the land to the grantees. And where the grantor dies insolvent long after he placed such deed in the hands of his agent, the subsequent delivery of the deed will be ineffectual to defeat the rights of the grantor's creditors and adminis- trator to sell the land for the payment of his debts; for the rule is that the doctrine of relation, which alone could give eft'ect to such deed, will not be permitted to apply so as to do wrong or injury to strangers to the deed. Jones v. Loveless. 99 Ind. 317. 830 INDIANA PROBATE LAW. § 480 bate unless proved not to have been executed animo testandi, while such as are equivocal in character must be proved to have been executed animo testandi.*^ It is said that when it can have no effect as a deed, the court is inclined to regard it as a will, if in that character effect can be given to the evident intention of the maker. The controlling ques- tion is, whether the maker intended that an estate or interest should vest before his death." Our own court says : "We think it may be affirmed, as a just deduction from the cases, that no matter by what name the parties may call their agreement, or to what extent there may be con- tractual provisions in it, yet if a provision of a clearly testa- mentary character is found in the writing and it is witnessed in accordance with the requirements of the law, it may operate as a will."^^ It is the leading object with courts of justice to give effect to the intention of parties, both in their deeds and wills, and cases may be found in which courts have exhibited a like anxiety to uphold as deeds instruments which could not operate as w411s. W^here the writer's intention is manifest from the whole in- strument that it shall not take effect until his death and shall not pass any property right until that time, it is held to be inherently a will no matter what outward form it may assume.*'^ An instrument executed conformably to the statute with all the fomialities of a will, which is to operate in the lifetime of the grantor, and which passes an estate in the property of the grantor, even though the absolute enjoyment of the estate passed is postponed until after the grantor's death, is a deed and not a will." § 480. Revocation of wills. — It is provided by statute that : "No will in writing, nor any part thereof, except as in this act provided, shall be revoked unless the testator, or some other per- *■■ Williams Extrs. & Admrs., 106. ^ Heaston v. Krieg, 167 Ind. 101, 11 **Trawick v. Davis, 85 Ala. 342, 5 X. E. 805, 119 Am. St. 475. So. 83; Cover v. Stem, 67 Md. 449, 10 *" Mosser v. Mosser, 32 Ala. 551. Atl. 231, 1 Am. St. 406; Edwards v. •'"Tansel v. Smith, — Ind. App. — , Smith, 35 Miss. 197; Combs v. Jolly, 93 N. E. 548; In re Will of Diez, 50 3 N. J. Eq. 625. N. Y. 88. §4^0 EXECUTION, REVOCATION AND PROBATE. 83 1 son in his presence and by his direction, with intent to revoke, shall destroy or mutilate the same ; or such testator shall execute other writing for that purpose, signed, subscribed and attested, as required in the execution of a will. And if, after the making of any will, the testator shall execute a second, a revocation of the second shall not revive the first will, unless it shall appear, by the temis of such revocation, to have been his intent to revive it, or unless, after such revocation, he shall duly republish the pre- vious will."*^ The requirements of the statute in reference to the revocation of wills must be strictly pursued, and whatever is done by a tes- tator, to be effectual as a revocation, must be done with the in- tention of revoking the will. Neither the act nor the intention alone will be sufficient : they must concur. The act of revocation must be done by the testator, or by some person in his presence and by his direction. The mere intention to revoke does not ren- der a will inoperative, nor does the belief of the testator that the will has been destroyed or otherwise revoked affect its validity.*' Tarman, in his treatise on the law of wills, says : "The legisla- ture having pointed out certain modes by which a will may be revoked, it is not in the power of the judicature, under any cir- cumstances, to dispense with part of its requisitions and accept the mere intention or endeavor to perfomi the prescribed act as a substitute or equivalent to the act itself, though the intention or endeavor may have been frustrated by the improper behavior *' Burns' R. S. 1908. § 3115. In or- ]\Irs. Belshaw, but it is found that she der to constitute a valid revocation of once declared an intention, never a will there must be the concurrence thereafter carried into effect, to make of the intention to revoke and an act certain conveyances and then to de- manifesting the intention; and the act stroy her will. That these facts are must be such as the statute recognizes insufficient to constitute a revocation as a proper manifestation of the in- is established by reference to the stat- tention to revoke. Woodfill v. Pat- ute.'" ton. 76 Ind. 575, 40 Am. Rep. 269; "Runkle v. Gates, 11 Ind. 95; Davis Forbing v. Weber, 99 Ind. 588. In v. Fogle, 124 Ind. 41, 23 N. E. 860. 7 Belshaw v. Chitwood, 141 Ind. 2,77, 40 L. R. A. 485n ; Wooler>- v. Wooler>-, X. E. 908, it is said: "It is found 48 Ind. llo; Woodfill v. Patton. 76 that no written revocation or inten- Ind. 575, 40 Am. Rep. 269 : Wright v. tion to revoke was ever executed by Wright, 5 Ind. 389. 832 INDIANA PROBATE LAW. § 480 of a third person."^^ Nor will any addition or alteration of a will made b}' the testator amount to a revocation of such will unless it is made with intention to revoke/^ The execution of a new will, making another and inconsistent disposition of the testator's property, operates as a revocation of a former will by such testator disposing of the same property, and this is so whether the former will is expressly revoked by the latter one or not.°" And such second will may become opera- tive as a revocation of a former will, although it may be inopera- tive in all other respects. ^^ In order that there should be a valid revocation there must be a concurrence of the intention to revoke and the act manifesting such intention; therefore, if a testator in a temporary fit of in- sanity destroy a will theretofore made by him it is not thereby revoked, and it may be established by proof as a destroyed will.^* A will may be revoked by implication,^^ and a will after its revocation is not competent for any purposes.^*' At common law the revocation of a subsequent inconsistent will, revoking a former will operated to revive the former when such former will was not destroyed by the testator. But this rule °" Jarmin Wills, ch. 7, § 2. The eras- testamentary disposition of property lire by a testator of his signature to or not. Burns v. Travis, 117 Ind. 44, his will, designedly and deliberately 18 N. E. 45. made, accompanied by the intention to ^" Burns v. Travis, 117 Ind. 44, 18 revoke, must be deemed a destruction N. E. 45 ; State v. Crossley, 69 Ind. of the will ; and his purposely draw- 203 ; 1 Jarman Wills, 336. ing a pencil or other implement which ^^ Burns v. Travis, 117 Ind. 44, 18 erases, cancels or obliterates, over his N. E. 45 ; Laughton v. Atkins, 1 Pick. signature to the will, is such a mutila- (Mass.) 535. tion as takes from the instrument an ^ Forbing v. Weber, 99 Ind. 588. element essential to its validity, and °' Graham v. Burch, 47 Minn. 171, is therefore a revocation. Woodfill 49 N. W. 697, 28 Am. St. 339n. V. Patton, 76 Ind. 575, 40 Am. Rep. "^ State v. Crossley, 69 Ind. 203. The 269. destruction of a will by the maker ^^ Wright V. Wright, 5 Ind. 389. If during a temporary fit of insanity is a will, duly subscribed and attested, not an act done with his consent, and expressly revokes all prior wills exe- does not revoke it, or, under the stat- cuted by the testator, it is valid for ute, prevent its proof and establish- that purpose, under § 3115, Burns' R. ment as one destroyed. Forbing v. S. 1908, whether it is effectual as a Weber, 99 Ind. 588. 48 1 EXECUTION, REVOCATION AND PROBATE. 833 is changed by the above statute and the execution of a subsequent will making a disposition of property inconsistent with the former will operates to revoke the former will and the revocation of such subsequent will does not of itself revive the former will."' § 481. Revocation by birth of a child. — The statute pro- vides that, "If, after the making of a will, a testator shall have born to him legitimate issue who shall sui-vive him, or shall have posthumous issue, then such will shall be deemed revoked, unless provision shall have been made in such will for such issue. "^* In construing this section of the statute in one case, the court says : "The above section of the statute is so plain and unequivo- cal as to leave little room for doubt or construction. The object of the statute was to render certain and definite what had become uncertain and doubtful by reason of the conflicting decisions of "Kern v. Kern, 154 Ind. 29, 55 X. E. 1004. In Harvvood v. Goodright, 1 Cowp. 87, 92, Lord Mansfield said: '"If a testator makes one will and does not destroy it, though he makes an- other at any time virtually or express- ly revoking the former; if he after- wards destroy the revocation, the first will is still in force and good." In 29 Am. & Eng. Ency. of law, 288, it is said : "Where the later of two incon- sistent wills was revoked by the testa- tor in his lifetime, it was held by the courts of common law that the earlier will was thereby revived, and, unless afterwards revoked by some subse- quent act, came into operation on his decease, whether the later will con- tained an express clause of revocation or not. In the ecclesiastical courts it was held that the revocation of the later will raised no presumption in Victoria abolished the doctrine by ex- pressly providing that no will or codi- cil, or any part thereof, which shall be in any manner revoked, shall be re- vived otherwise than by the re-execu- tion thereof, or by a duly executed codicil showing an intention to revive the will. In several of the states sim- ilar statutes exist, under which the re- vocation of the second will does not revive the first, unless such intent ap- pear in the terms of the revocation, or the first will be duly republished af- terwards. In the absence of such leg- islation the rule varies greatly in the different states." =' Burns' R. S. 1908, § 3116. The adoption of a child, under the statute of this state, does not operate to re- voke an antecedent will of the adopt- ing father, although he has made no provision by the will or otherwise for favor of the revival of the earlier will, such adopted child. By § 3116, Burns' but that the question depended upon R. S. 1908, the revocation of a will is the intention of the testator as shown not contemplated upon the adoption by .the peculiar facts and circum- of a child. Davis v. Fogle, 124 Ind. stances of the case, and was open to 41, 23 N. E. 860, 7 L. R. A. 485n. decision either way. The Statute of 53— Pro. Law. 834 INDIANA PROBATE LAW. § 482 the courts, both of England and America. The ecclesiastical courts very early adopted the rule that marriage and the birth of a child revoked a will as to personalty, and the same principle was ultimately, but not without a struggle, applied to devises of real estate. Finally, it was held that it was not necessary that subsequent marriage and birth of a child should both concur, but that the birth of a child alone, in connection with other circum- stances, might be sufficient to raise an implied revocation. In some of the cases it was held that the subsequent birth of a child only revoked the will as to such child, while in others it is held that it was not necessary that the provision for the subsequent issue should be made in the will, but that it might be made other- wise. The most, if not all, of the American states have adopted statutes on the subject, but these statutes are as different and conflicting as had been the decision of the courts. Under our statute, the birth of a child after the execution of a will works an entire revocation of the will, unless provision shall have been made in such will for such issue. Such is the plain, express and undoubted requirement of the statute, and it is our imperative duty to carry into execution the legislative intention. "^^ The same rule applies in the case of the birth of posthumous child. ^" The adoption of a child does not operate to revoke an antece- dent will of the adopting parent, although no provision for such child has been made by the will or otherwise.®^ Property acquired after the execution of the will, and which is unaffected thereby, is not a provision for after-born children, so as to prevent revocation.®^ § 482. Effect of child's death. — While the birth of a child, after the making of a will, will work a revocation of such will as ^"Hughes V. Hughes, Zl Ind. 183; be deemed revoked, and the property Bowers v. Bowers, 53 Ind. 430. of the decedent must descend accord- "'' Morse v. Morse, 42 Ind. 365. In ing to the statute of descents, this case it was held that the birth of ^ Davis v. Fogle, 124 Ind. 41, 23 N. such child, without a provision for it E. 860, 7 L. R. A. 485n. in the will revokes the will, and that "" Baldwin v. Spriggs, 65 Ind. Z12>, 5 while such child lives, the will is to Atl. 295. § 483 EXECUTION, REVOCATION AND PROBATE. 835 shown in the preceding section, in case such child should die with- out issue, however, it is further provided. "But in case such child dies without issue, and the wife of such testator be living, the estate of the testator, except the wife's interest therein, shall descend according to the terms of the will ; and in case of the death of the wife, and also the child, without issue, the whole of such estate shall descend as directed in the will unless such child have a wife living at his death, in which case such wife shall hold such estate to her use so long as she re- mains unmarried.'"'^ It is not the intention of this section of the statute to hold the matter of the revocation of the will provided for in the preceding section, in abeyance until the death of the child without issue ; but it simply provides a method of descent for the property of the testator in case such child should die without issue.*'* § 483. When marriage a revocation. — The statute pro- vides that "after the making of a will by an unmarried woman, if she shall marry, such will shall be deemed revoked by such marriage."®^ This statute applies as well to a second or subsequent marriage of a woman as to her first marriage.*'® The statute does not, however, apply to a man, the common- law rule that mere marriage on his part did not revoke a previous will made by him remains unchanged.®' "' Burns' R. S. 1908, § 3117. will is made revokes it. To this view " Morse v. Morse, 42 Ind. 365. we do not agree. Our statute 2 G and «^ Burns' R. S. 1908, § 3118. H. 552, §§ 3, 4 and 5, and § 19, p. 555, *°Vail v. Lindsay, €] Ind. 528. provides what acts shall operate as a " Bowers v. Bowers, 53 Ind. 430. In revocation of a will, and marriage of this case the court saj's : "It is ad- the testator is not one of them, and mitted on both sides, and authorities we hold that the common law on this are cited, that at common law, a mere point is not changed by statute. The marriage did not revoke a will, but fifth section cited above, revokes the that marriage and legitimate issue will of an unmarried woman, if she were necessary to revoke a will. It is shall marrj', but it does not apply to a claimed that our statute has changed man." this rule, and that a marriage after the 8^6 INDIANA PROBATE LAW. § 484 The common-law rule that marriage alone does not revoke the previous will of a man is not changed in this state.'''' It has been held that the execution of an ante-nuptial agreement by a woman in contemplation of marriage, by the terms of which she was to retain the right to the absolute control and disposition of her separate property, so operated as to prevent a revocation of a will made by her previous to her marriage, even where such agreement was executed after the execution of the will.'^'' It is not the marriage of every woman which operates to re- voke a will previously made by her. It is where the will has been made by an unmarried woman that such revocation occurs. If a will is made by a married woman who is afterwards divorced, or becomes a widow and marries again such will is not thereby revoked.^" § 484. What is not deemed a revocation. — "An incum- brance upon any estate shall not be deemed a revocation of any devise of such estate previously executed, but the devises and legacies relating thereto shall be subject to such incumbrance."'^^ "When any testator, after making his will, shall execute a con- tract for the conveyance of any property devised in such will, and any part of the purchase money remains unpaid, such conveyance shall not be deemed a revocation, unless it shall appear from such contract to have been so intended ; and a remedy for specific per- formance may be had against the devisees by the persons entitled thereto by virtue of the contract, and the purchase money due on such contract, when recovered by the executor, shall be paid to the devisees."^^ The statute further provides that: "If, after having executed a will devising any property, any testator shall make a convey- ance of his interest therein, and shall take back a new estate therein, such new estate shall pass, by his will, to the person to "« Bowers v. Bowers, 53 Ind. 430. 153 N. Y. 416, 47 N. E. 817, 60 Am. "» Stewart v. Mulholland, 88 Ky. 38, St. 664. 10 S. W. 125, 21 Am. St. 320. " Burns' R. S. 1908, § 3120. '"Hibbard v. Trask, 160 Ind. 498, "Burns' R. S. 1908, § 3119. Bel- 67 N. E. 179; In re McLarney's Will, shaw v. Chitwood, 141 Ind. 377, 40 N. E. 908. § 484 EXECUTION, REVOCATION AND PROBATE. 83/ whom the original estate or interest was devised, unless it shall appear from such will, or by the conveyance of his estate or in- terest therein, or by the instrument by the force of which such new estate is taken back, that the testator intended that such con- veyance should operate as a revocation of such devise."" By the common law any alienation of land by the testator, after the execution of a will devising such land, operated as a revocation of the devise. The law required that the same interest which the testator had in the land when he made the will should remain unaltered to the time of his death. The least alteration of such interest amounted to a revocation of the will.'* This statute makes a material change in the common-law rule, and under it the conveyance of the land devised is not, of itself, an act of revocation. The devise, by necessary implication, is re- voked, while the title of the land conveyed remains out of the testator; but any reconveyance of the land to the testator which would vest the title thereto in him at the time of his death, as it was at the execution of the will, would restore the operative power of the will over the land devised."^^ An invalid deed of conveyance has no effect to revoke a pre- vious devise of the same land.'" A valid conveyance of real es- '^ Burns' R. S. 1908, § 3121. One of "M Kent. Com., 530; Bowen v. the clauses of a will directed that the Johnson, 6 Ind. 110, 61 Am. Dec. residue of the testator's real estate, 110: Woolery v. Woolery, 48 not theretofore disposed of, should go Ind. 523. Where a given number to his two sons share and share alike, of acres, to be taken from a while the last clause, (contained in a tract of land, are devised by one codicil) declared that all the residue clause of a will to A, and by another of his estate, not therein specifically the remainder is devised to B and C, devised, should go to all his children the modification of the devise to A by share and share alike. The codicil re- a codicil subsequently executed dimin- ferred to revoked certain devises and ishing it, the devise to B and C being bequests, but made no disposition of left unchanged, adds nothing to that real estate, except in the residuary to B and C. Sturgis v. Work, 122 clause. Held, that the codicil controls Ind. 134, 22 N. E. 996, 17 Am. St. 349. the disposition of the undisposed res- "^Redfield Wills, p. 32,7; Woolery v. idue. Sturgis v. Work, 122 Ind. 134, Woolery, 48 Ind. 523. 22 N. E. 996, 17 Am. St. 349. '' Bennett v. Gad-, and the statute must be followed or the right fails. The statute is as follows : If, prior to the admission of any will to probate before the clerk of the circuit court, objection thereto, in writing, verified by his affidavit alleging that the same is not made for vexation or delay, be filed by any person with such clerk, he shall continue the same until the succeeding term of court, when, if the person contesting such will fail to resist the probate thereof, the judge of such court may admit such will to probate : but if such objection be made before such court, reasonable time shall be allowed the party making the same to resist the probate of such will.^ conclusive as to the due execution of ' Hegarty's Appeal, 75 Pa. St. 503 ; the will, except in an action under the Bent's Appeal, 35 Conn. 523 ; George statute, to contest its validity. Lange v. George, 47 N. H. 27. V. Dammier, 119 Ind. 567, 21 N. E. ^Miller v. Coulter, 156 Ind. 290, 59 749. N. E. 853. Allen V. MTherson, 1 H. of L. ^ Burns' R. S. 1908, § 3153. 191 ; Plume v. Beale, 1 P. Wm. 388. 844 INDIANA PROBATE LAW. § 488 The proceeding contemplated by this statute must be com- menced before the alleged will has been admitted to probate. The objections to its probate are properly filed at or after the time when such will is offered for probate. If the objector stands by his objections at the succeeding term of court, the proceeding assumes the form of an adversary one, and differs little, if any, from any action regularly begun to contest the validity of the will. In either case it raises the question of the validity of the will. On this point the Supreme Court has said : "In the first class the contest, if successful, prevents the probate, while in the last it revokes it. It attaches itself to and becomes part of the proceedings of the probate, so that if the will has been previously admitted to probate, the court takes judicial notice of the fact; if it has not been admitted the judgment rests without action un- til the will is offered for probate, if it has not been offered."* Objections to the probate of a will must be made in writing, and verified by affidavit that they are not made for vexation or delay.^ And where objections are properly made the burden is on the proponent of the will to establish the due execution of the will, but also the testamentary capacity of the testator at the time of executing the instrument. The presumption of law in favor of sanity does not in such case shift the burden of proof.® ^ Curry v. Bratney, 29 Ind. 195. testator was of unsound mind, that '" Miller v. Coulter, 156 Ind. 290, 59 the will was unduly executed, that it N. E. 853. was executed under duress, or was ^ Steinkuehler v. Wempner, 169 Ind. obtained by fraud, or upon any other 154, 81 N. E. 482; Miller v. Coulter, ground of contest. At the conclusion 156 Ind. 290, 59 N. E. 853. In this of the evidence for the contestor, he case the trial judge was of the opinion held that the proponents of the in- that the proponents of the will were strument might rebut the evidence required, in the first instance, to make given for the contestors. This was a prima facie case only, by proving the order of the introduction of the that the testator signed the instrument evidence, and we are not prepared to in question as his last will and testa- say that it was not the correct prac- ment, that he was of full age, and that tice. The fact that some evidence, the execution of the instrument was which might have been introduced in duly attested by two witnesses; and rebuttal, was given in chief, was not that after such proof the contestor a serious error. Harrison v. Boyd, had the right to assail the execution — Ind. — , 96 N. E. 587. of the instrument by showing that the § 488 EXECUTION, REVOCATION AND PROBATE. 845 If any person has contested the validity of any will under the provisions of the above section of the statute, and his objections have not been sustained, and the will has been established and ad- mitted to probate, he will be estopped from afterward proceeding to contest such will after its probate/ And the probate of a former will cannot be pleaded in bar of an application to admit a later will to probate, unless the appli- cant has had such a connection with the former will, or the pro- bate proceedings upon it as would estop him from denying its validity.^ If the proponent fails to prove what he affirms by a prepon- derance of the evidence the instrument will be rejected as a will. If he succeeds it will be admitted to probate, not as a prima facie will, but as an absolute verity in so far as the parties to the pro- ceeding are concerned.^ That objections to the probate of a will filed by one are pending, is no bar to the filing of objections by another party, and the dismissal of the first objections will not affect proceedings on the latter.^" The rule that an action is commenced only when a complaint is filed and process issued thereon applies to a proceeding to contest the probate of a will. In such proceeding all parties bene- ficially interested under the will are entitled to notice, and if they are not sei-ved with notice of such contest, they have the right, upon proof, to have the will probated in spite of the objections filed." But where formal proof of the execution of a will was presented to the court and before the order admitting the will to probate objections were filed, such objections are in time.^^ •Duckworth v. Hibbs, 38 Ind. 78; " :\IcGeath v. Starr, 157 Ind. 320, 61 FilHnger v. Conley, 163 Ind. 584, 72 N. E. 664. N. E. 597 : Clearspring Tp. v. Blough, " Towles v. McCurdy, 163 Ind. 12, 71 173 Ind. 15, 88 N. E. 511 ; 89 N. E. X. E. 129. "The failure of the appel- 359 lants to demand that the court should * Burns v. Travis, 117 Ind. 44, 18 N. act upon the proofs, and admit the ■£ 45_ will to probate when it was presented, * Morell V. Morell, 157 Ind. 179, 60 and their apparent acquiescence in the N. E. 1092. subsequent delay, authorized the filing " McGeath v. Starr, 157 Ind. 320, 61 of objections to the probate of the N. E. 664. will while the proceedings remained 846 INDIANA PROBATE LAW. §488 Where the probate of a will was resisted on the grounds of in- sanity, undue influence, and undue execution the testimony of the physician who attended the testator is incompetent as to com- munications made to him by the patient, or facts leamed by him in the course of his business as such physician. ^^ Any person interested may resist the probate of a will, and the executor named in the will is a necessar}- party. Such executor has power to bind the estate of the testator for the payment of attorney fees incurred by him in resisting a suit contesting the probate of the will.^* he is tlie only person who can in the first instance properly prove the same.' 3 Redficld, Wills, 8. In Henderson v. Simmons, (1858) 33 Ala. 291, 299 [70 Am. Dec. 590] it was said : 'It is the privilege, if not the duty, of one named as executor of a paper pur- porting to be a last will and testament to propound it for probate. If he have no knowledge or reasonable grounds on which to predicate a well grounded suspicion against the legal- ity of the will, and propound the pa- per in good faith, he but carries out the intention with which he was ap- pointed. Any reasonable costs and expenses incurred by him in the hon- est endeavor to give effect to the will, is a proper charge on the estate in his hands.' See, also. Baker v. Cauthorn (1900), 23 Ind. App. 611, [55 N. E. 963, n Am. St. 443] ; Wills v. Sprag- gins, (1847), 3 Gratt. (Va.) 555; Bradford v. Boudinot (1811), 3 Wash. C. C. 122; Lassiter v. Travis (1897), 98 Tenn. 330, 39 S. W. 226 ; Hazard v. Engs, (1882), 14 R. I. 5 ; Mathis v. Pitman (1891), 32 Xeb. 191, 49 N. W. 182; In re Estate of Soulard (1897), 141 Mo. 642, 43 S. W. 617. In hold- ing that it was the duty of the exec- utor to propound the paper which he supposed was the will, and that he was entitled to recover his counsel in that situation. It is also to be ob- served that the appellants made no ob- jection to the filing of the statement of the grounds of contest of the will, and, having failed to interpose any objection at that time, they could not afterwards be heard to say that the statement was not filed within the time fixed by the statute. The motion to set aside the submission of this cause and to admit the will to probate was properly overruled." "Towles v. :McCurdy, 163 Ind. 12, 71 N. E. 129; Brackney v. Fogle, 156 Ind. 535, 60 N. E. 303; Thompson v. Ish, 99 Mo. 160, 12 S. W. 510, 17 Am. St. 552n; Winters v. Winters, 102 Iowa 53, 71 X. W. 184, 63 Am. St. 428; Hageman Priv. Com., § 86. " Fillinger v. Conley, 163 Ind. 584, 11 X. E. 597. "We find it laid down by Blackstone that 'the executor or the administrator durante minora setate, or durante absentia, or cum testamento annexo, must prove the will of the deceased ; which is done either in common form, which is only upon his own oath before the ordi- nary or his surrogate, or per testes, in more solemn form of law, in case the validity of the will be disputed.' 2 Blackstone's Comm., 508. Judge Red- field says : 'The executor is presumed to have the custody of the will, and 488 EXECUTION, REVOCATION AND PROBATE. 847 In proceedings to contest the probate of a will brought before such will has been admitted to probate, the contestor is not re- quired to file a bond.^^ While it is held that one who has appeared and resisted the probate of a will is concluded from afterwards contesting such will, yet a distinction is drawn between actions resisting probate and contesting wills, and those brought for the purpose of having the will or some particular provision of it construed. Parties to the former class of actions are not precluded from bringing the latter.'' fees incurred in the preliminary con- test, the Supreme Court of Missouri, in the case last cited, said : 'An exec- utor represents his testator, not only in executing the will after its probate, but in having it probated. He is ap- pointed on account of the confidence reposed in him and it is his duty to do everything necessary to carry it into execution. This duty includes that of propounding the will for pro- bate, for it cannot be executed until it has been properly adjudged to be the will of the testator. The exec- utor acts, not only in the capacity of a trustee of the estate, but he repre- sents the testator in carrying out his will. It is therefore clearly the duty of an executor to obtain for the will in the first instance the sanction of the law which is necessary to make it effective. In performing that duty he acts in the capacity of a representa- tive of his testator, and should of right be reimbursed out of the estate for all expenses incurred in good faith in the discharge of his duty, whether the will be established or re- jected. That the advice and services of attorneys are proper items of ex- pense in the first probate of the will, cannot reasonably be doubted.' " " Blanchard v. Wilbur, 153 Ind. 387, 55 N. E. 99 ; Harrison v. Stanton, 146 Ind. 366, 45 X. E. 582. '" Clearspring Tp. v. Blough, 173 Ind. 15, 88 N. E. 511, 89 N. E. 369. "Where the valid provisions of a will are sufficient to carry out some pur- pose of the testator, and are not so in- terwoven with invalid provisions that the entire will must be stricken down, there is a marked difference between resistance to the probate of such will, or its contest after probate, and the construction of the provisions there- of. If, as we have held in the main opinion, some of the provisions are valid, it must follow that parties can- not, in the suit to resist probate, have alleged invalid portions of a will con- strued. After probate, they may raise any question as to the validity of different provisions, under the well established rule that the doctrine of former adjudication applies only in cases in which matters have been, or could have been determined under the issues formed, as determined by the pleadings. We think it very clear that upon an issue of probate or contest of a will, unless the instrument is wholly ineffective for any purpose, nothing can be determined except the question of probate or contest to set aside the will and probate. Such pro- 848 INDIANA PROBATE LAW §489 § 489. What must be probated. — All wills, wTitten or oral, must be probated, and all insliunieiits of a testamentar}' char- acter, which contain provisions relating to the disposition of property, either real or personal, after the death of the maker.'^ A codicil should be probated, even though it contains nothing but the revocation of a former will.'' So, also, if properly at- tested, must a deed be probated,'" or a bill of exchange, or a promissory note.*" And where a will is made in execution of a power it should be probated.-^ Also a paper in the fonn of a power of attorney, if it is intended to operate as a testamentary disposition of property. -- But papers which are not testamentary in character, although they may be executed and attested according to law, need not be probated.-^ And where a will which has been executed in due form refers to some paper which has not been so executed as containing di- ccedings have no effect upon the right to have particular provisions con- strued, even to the extent of striking them down entirely, if invalid." ^' Patterson v. EngHsh, 71 Pa. St. 454 ; In re Wood's Estate, 36 Cal. 75 ; Succession of Ehrenberg, 21 La. Ann. 280, 99 Am. Dec. 729; Johnson v. Yan- cey, 20 Ga. 707, 65 Am. Dec. 646; Walker v. Jones, 23 Ala. 448; Brown v. Shand, 1 McCord (S. Car.) 409; Jackson v. Jackson, 6 Dana (,Ky.) 257;Wilbar v. Smith, 5 Allen (Mass.) 194; Edwards v. Smith, 35 Miss. 197; In re Beebe, 20 Hun (N. Y.) 462. In the last case the following paper was admitted to probate: "After my mother's death mj' cousin A is my heir. This writing is instead of a for- mal will, in which I intend to make B my executrix." Also a writing, a bank deposit book, which directed that all moneys deposited by the testator, together with interest thereon, should, after his death, be paid to the person named in such writing, if not other- wise disposed of by will. Armstrong's Estate, 2 Pa. Co. 166. "Laughton v. .\tkins, 1 Pick. (Mass.) 535. "Frew v. Clarke, 80 Pa. St. 170. '"Jones v. Nicolay, 2 Rob. 288; Co- ver v. Stem, 67 Md. 449, 10 Atl. 231, 1 Am. St. 406. ■^ Sugden on Powers, 21. ~ Rose V. Quick, 30 Pa. St. 225. ^^ Lucas v. Brooks, 18 Wall. (U. S.) 436, 21 L. ed. 779. In this case a writ- ing bearing even date with another, which purported to be the last will and testament of the writer, and which disposed, clearly and absolutely, of all his estate; the first writing styling itself a letter and referring to the other as the will, the "letter" being for the information, &c., of the exec- utors, has no testamentary obligation, although it may direct certain specific benefits to certain persons. 489 EXECUTION, REVOCATIOX AND PROBATE. 849 rections, etc., in regard to the disposition of the testator's prop- erty, such paper, if in existence, and clearly identified as the one referred to in the will, is made by such reference a part of the will, and should be probated as such.-^ But where such extrane- ous paper referred to is the property of another person, who re- fuses to give it up, the court will not require him to produce it, but will direct the probate of the will without the incorporation of such paper. -^ An instrument properly executed which, without making any disposition of property, names an executor for the estate of the testator, should be admitted to probate as a will.^® Schedules, notes and other papers may be considered in con- nection with the will and as a part of it, when they are plainly identified in the will. And this was the case where notes payable at the death of the testator were folded up with his will, and were clearly and fully identified, and remained in his possession at the time of his death.-' As a rule all papers of a testamentary character should be ad- =* Allen V. Maddock, 11 Moore, P. C. 427; Newton v. Seaman's Friend Soc, 130 Mass. 91, 39 Am. Rep. 433 ; Estate of Shillaber, 74 Cal. 144, 15 Pac. 453, 5 .^m. St. 433 ; Symes v. Ap- pelbe, 57 L. T. (X. S.) 599; Fickle v. Snepp, 97 Ind. 289, 49 Am. Rep. 449n ; Fesler v. Simpson, 58 Ind. 83 ; Fossel- man v. Elder, 98 Pa. St. 159; 1 Jar. Wills, n, 38 ; 1 Redf. 261, 262. ''Goods of Sibthorp, L. R. 1 P. & D. 106. It is said, in this case : '"The court is not justified in seeking to elucidate a testator's intentions by compelling third persons to produce private deeds which may form part of the titles to estates in which the tes- tator had no concern. If the result be that the probate is imperfect, it arises from the necessity of the thing, and the fault lies with the testator, or with those who advised him to make a will in such form." * Schouler Exrs. & Admrs., 76. ^^ Fickle V. Snepp, 97 Ind. 289, 49 Am. Rep. 449n; Fesler v. Simpson, 58 Ind. 83; 1 Redf. Wills, 261, 262. In Xewton v. Seaman's Friend Soc, 130 Mass. 91, 39 Am. Rep. 433, it is said: "If a will, executed and witnessed as required by statute, incorporates in itself by reference any document or paper not so executed and witnessed, whether the paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper so refer- red to, if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to there- in, takes effect as part of the will, and should be admitted to probate as such." Fosselman v. Elder, 98 Pa. St. 159. 5^1 — Pro. L.\w. 850 INDIANA PROBATE LAW. § 49O mitted to probate, and if there is doubt as to the testamentary character of the paper it is better to admit it to probate and leave its legal effect to be settled in a contest. For the question as to the effect a will may have, upon the testator's property, is one not to be determined upon its probate."® A will having any valid pro- visions is a proper subject for probate but if upon its face it is wholly void probate should be denied. But if it is valid for any purpose, though it may be void in part, it should be probated, and the construction of the doubtful or invalid provisions left to the court in some proper proceeding.-" Codicils are usually so connected with the will that they cannot be probated apart from it. But a will may be probated even though the codicil cannot be found, for it may operate separate and apart from the codicil. ^° § 490. Where probated. — The general rule that a will shall be probated in the county where the testator last resided regard- less of the place where the will was made, or where such testator happened to die is modified by the statute in this state which pro- vides that: "Proof of last wills may be taken in any county: I St, where the testator, immediately previous to his death, was an inhabitant of such county ; 2d, where the testator, not being an inhabitant of this state, shall die in such county, leaving assets therein ; 3d, where the testator, not being an inhabitant of this state, shall die out of this state, leaving assets in such county ; 4th, where a testator, not being an inhabitant of this state, shall die out of this state, not leaving assets in such county, but assets of such testator shall come into the county thereafter."^^ By the English law, the ecclesiastical courts had exclusive jurisdiction of the probate of all wills disposing of personal property, but wills devising real estate were proved in any court of law in which a question upon them arose. In this state a will disposing of either real or personal property must be probated "■' Shouler on Exrs., 60, 63. re Davis's Will, 182 X. Y. 468, 75 N. =" Clearspring Tp. v. Blough, 173 E. 530. Ind. 15. 88 N. E. 511, 89 N. E. 369; In '' Schouler Exrs., 60. "Burns' R. S. 1908, § 3136. § 49^ EXECUTION, REVOCATION AND PROBATE. 85I in the court having probate jurisdiction; the statute says in the circuit court." Under this statute a will must be proved and probated in the county of which the testator was an inhabitant immediately pre- vious to his death, or if he were not an inhabitant of this state, in the county in which he left assets or into which his assets might thereafter come.^' A will may be proven and admitted to probate in open court, if it is in session, or before the clerk of such court in vacation, and "upon the refusal of the clerk of the circuit court to admit a will to probate, application therefor may be made to said court."^* Where a will was in good faith but mistakenly probated in the wrong county, the clerk of such county cannot be compelled to produce such will for probate and record in the proper county, it being held it was the duty of the courts of the latter county to accept as true the record of probate made by the court of the former.^^ § 491. Custody, and production of the will. — There is no law in this state, as there is in some of the states, providing an official depository for a will from the time of its execution until it is required for probate. The right of custody and control remains with the testator, and where he has been reticent about the matter of its execution, it is sometimes difficult to determine, after his death, whether he left a will or not. Any person who is in possession of the will of any decedent may be required to produce the same for proof and probate. The statute reads : "On the application to such circuit court of "Rogers v. Stevens, 8 Ind. 464. In of the will, when there was any, be- this case the court quotes from Pa- fore he resigned the right which he ley's Moral and Political Philosophy, had to take possession of the dead as follows. " 'Anciently, when any man's fortune in case of intestacy. In one died without a will, a bishop of this way wills, and controversies re- the diocese took possession of his per- lating to wills, came within the cogni- sonal fortune, in order to dispose of zance of ecclesiastical courts.' " it for the benefit of his soul, that is, ^Harris v. Harris, 61 Ind. 117. to pious or charitable uses. It became ^ Burns R. S. 1908, § 3148. necessary, therefore, that the bishop "Cunningham v. Tuley, 154 Ind. should be satisfied of the authenticity 270, 56 X. E. 27. 852 INDIANA PROBATE LAW. § 491 any person interested, the clerk thereof shall issue a citation to any person alleged to ha\e the custody of any will, requiring such person to produce the same before such court at such time as the court shall deem reasonable, that the same may be duly proven. And any person having such will in his possession, who without just cause shall, after such citation, fail to produce such will, may be committed to the jail of the county by an order of the court, there to remain until he produce such will, or shall be discharged by the further order of the court; and shall, more- over, be liable to any person interested in such will for tlie damages occasioned by withholding the same."^" But "the person alleged to have the custody of any will shall not be committed to jail if he file his affidavit that such will was never in his possession, or that he parted with its custody before the service of such citation to some person (naming the person) without any intention to defeat or delay the probate thereof."^' The complaint under this statute must aver that the defend- ants to such application, or either of them, have the custody of the alleged will, before a citation can be issued on such complaint. ^^ If any person is interested in the estate, or if he has reason to suppose that he is entitled to a legacy or devise, under the will of any decedent, he may apply for a citation to have the will produced. ^^ There is no time limit fixed by the law in this state within which a will must be produced for probate. But a bona fide '* Burns' R. S. 1908, § 3139. court. * * * If the appellants have '^ Burns' R. S. 1908, § 3140. such an instrument in their posession, ^Duckworth v. Matlock, 31 Ind. they can offer it for probate, if it be 380. It is said in this case : '"It will in the possession of any one else, they be observed that the complaint in this can have a citation requiring the per- case does not aver that the defend- son having such custody to produce ants or either of them have the cus- the will before the court that it may tody of the alleged will, and there- be proved." fore the facts stated do not authorize ''Foster v. Foster, 7 Paige (X. Y.) a citation against them, or either of 48. them, to produce the same before the § 491 EXECUTION, REVOCATION AND PROBATE. 853 purchaser of land from the heirs of a testator can hold his title as against the devisees in the will if such will is not produced and probated within three years after the death of the testator. The statute provides that "the title to any lands or interest therein, purchased in good faith and for a valuable consideration, from the heirs-at-law of any person who shall have died seized of real estate, shall not be impaired by virtue of any devise made by such person of the real estate so purchased, unless the will or codicil containing such devise shall have been fully proved, and recorded in the office of the clerk of the court having jurisdiction, within three years after the death of the testator, except, first, where the devisee shall have been within the age of twenty-one years, of unsound mind, imprisoned, or out of the state at the death of such testator; second, where it shall appear that the existence of such will or codicil shall have been concealed from or unknown to such devisee. In which cases the limitation specified in this section shall not commence until after the expiration of one year from the time of such disability shall have been removed, or such will or codicil shall have come into the control of such devisee or his representative, or have been deposited in the clerk's office of the circuit court."*" The purchaser of lands within the purview of this statute, in an action for their recovery, unless the complaint shows upon its face that the plaintiffs are not within any of these exceptions named in the statute, must plead such limitation. He cannot raise the question simply by demurrer to the complaint.*^ *° Burns' R. S. 1908, § 3131. resided in this state at any time. " Biggs V. McCarty, 86 Ind. 352, 44 * * * If they thus lived out of the Am. Rep. 320. In this case it is said : state, the statute did not run against "It appears in the complaint that An- them. geline Biggs and her husband were "Assuming that the statute re- married in Kentucky, and that she ferred to applies as well to foreign as died in Missouri. It is not alleged, to domestic wills, a question which we nor does it appear from the complaint, do not decide, the objection to the that she ever resided in the state of complaint is not well taken. Unless Indiana; nor does it appear from the the complaint shows upon its face complaint that any of the appellants that the appellants are not within any 854 INDIANA PROBATE LAW. § 492 Whoever, during the Hfe of the testator or after his death, steals, takes, and carries away a will, codicil, or other testa- mentary instrument executed by such testator, or, for a fraudu- lent purpose, destroys or secretes the same, upon conviction thereof shall be imprisoned in the state prison not more than fourteen years nor less than two years, fined not exceeding one thousand dollars and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period." § 492. Proof of the will. — Before a will can be probated proof must be made of its proper execution, the testator's sig- nature, the attestation of the witnesses, the publication of the will and such like matters. The statute reads as follows : "Be- fore a written will shall be admitted to probate, or letters testa- mentary or of administration, with the will annexed, shall be granted thereon, such will shall be proven by one or more of the subscribing witnesses, or, if they be dead, out of the state, or have become incompetent from any cause since attest- ing such will, then by proof of the handwriting of the testator or of the subscribing witnesses thereto."''^ The testimony of one of the subscribing witnesses is sufficient to prove the due execution of the will, where such witness knows that he and the other witness or witnesses subscribed the will as such in the presence of the testator.** of the exceptions contained in the al)undantly prove the due formal exe- 17th section, the appellee must, in or- cution of the will. But it is insisted der to avail himself of its benefits, by counsel for the appellees, that tw^o plead the limitation." Milner v. Hy- of the subscribing witnesses were suc- land, n Ind. 458; Harlen v. Watson, cessfully impeached, and that the jury 63 Ind. 143. were, therefore, justified in disregard- ^ Burns' R. S. 1908, § 2275. ing their evidence. We express no ** Burns' R. S. 1908, § 3141. opinion as to the effect of the evi- ** Hayes v. West, Zl Ind. 21. The dence claimed to have been' impeach- court in this case says : "The three ing. The situation of the case ren- attesting witnesses were examined, ders it unnecessary that we should do each of whom testified to the acknowl- so. One of the attesting witnesses is edgement by the testator of the exe- not claimed to have been in any man- cution of the will by him, and that ner impeached, and his testimony they signed it as witnesses at his re- alone, in our opinion, establishes the quest, and in his presence. They due execution of the will." § 49- EXECUTION, REVOCATION AND PROBATE. 855 The competency of the witnesses attesting the execution of a will is presumed until the contraty is shown/" It is further provided that : 'Tf none of the subscribing wit- nesses to a will be produced, their subsecjuent incompetency, death or absence from the state shall be proven before evi- dence of the handwriting of the testator, or of one of the sub- scribing witnesses, shall be received, and such evidence shall be taken in the same manner as on a trial at law."**^ "\A'itnesses may be summoned by subpoena, to be issued by the clerk of the circuit court, to appear and testify respecting the execution, subscribing, and attesting of such will."^'^ These sections of the statute contemplate no more than due proof of the formal execution of the will, and clearly mean when such proof is made the will shall be admitted to probate. The statute does not mean that whosoever proposes a will for probate shall be compelled to establish the sanity and freedom from duress of the testator at the time of executing the will. Such sanity and liberty of action will be presumed. ^^ It is not necessary to prove a fomial request to the witnesses. It is enough to show that the will was subscribed to as such by the testator in their presence, and by them as witnesses in the conscious presence of the testator.*'' \Miere it is sought to secure the probate of a will and both the subscribing witnesses thereto are dead, it is error to admit the statements of the alleged witnesses made in their lifetime, as to the fact of the execution and attestation of such will, such ^ Herbert v. Berrier, 81 Ind. 1. the contrary, to have an inference of ^ Burns' R. S. 1908, § 3143. "Proof its genuineness made in his favor." of the genuineness of the signatures Herbert v. Berrier, 81 Ind. 1, of the attesting vi^itnesses was proper- ■*' Burns' R. S. 1908, § 3138. ly made by proving their handvirriting. *' Herbert v. Berrier, 81 Ind. 1. It may be inferred from evidence of * Herbert v. Berrier, 81 Ind. 1 ; Tur- handwriting, that signatures are gen- ner v. Cook, 36 Ind. 129; In re Will uine. A party who shows that a name of Allen, 1 Am. Prob. 580 ; Cheatham is in the handwriting of the person v. Hatcher, 30 Gratt. (Va.) 56, 32 Am. whose signature is in question, has a Rep. 650. right, in the absence of anything to 856 INDIANA PROBATE LAW. § 493 evidence being excluded by the rule against hearsa}-. Lapse of time and necessity will be no excuse for waiving the rule.'" Where the genuineness of the signature of the testator, to- gether with that of the subscribing witnesses, they both being dead, are called in question, the validity of such signatures may be established by the evidence of those who are acquainted with the handwriting of each and who have shown themselves other- wise qualified to entitle them to an opinion as to the genuineness of the signatures they are called upon to identify. ^^ It is provided by statute : "If any one shall be a subscribing witness to the execution of any will in which any interest is passed to him, and such will cannot be proven without his testi- mony or proof of his signature thereto as a witness, such will shall be void only as to him and persons claiming under him, and he shall be compellable to testify respecting the execution of such will as if no interest had been passed to him ; but if he would otherwise have been entitled to a distributive share of the testator's estate, then so much of said estate as said witness would have been thus entitled to, not exceeding the value of such interest passed to him by such will, shall be saved to him."°- Under this statute it has been held that the wife of a bene- ficiary under a will is not a competent subscribing witness to such will to prove the due execution thereof.'^' § 493. Proof by depositions. — The statute provides for the subpoenaing of witnesses to appear and testify in proceedings for the probate of a will, either in court or during vacation, before the clerk, but until 1895 it made no provision for taking the deposition of such witnesses for such purpose; the statute seems to contemplate a personal appearance of the witnesses and a personal examination of them. The proceedings before the clerk in vacation are necessarily ex parte in their character, while the statute providing for the taking of depositions con- ^ Morell V. Morell, 157 Ind. 179, 60 ^^ Burns' R. S. 1908, § 3144. N. E. 1092. '' Belledin v. Gooley, 157 Ind. 49, 60 " Morell V. Morell, 157 Ind. 179, 60 N. E. 706 ; ante, § 475. N. E. 1092. § 494 EXECUTION, REVOCATION AND PROBATE. 857 templates proceedings of an adversary character, with notice to the adverse party.^* The following statute enacted in 1895 ^^^ amended in 1899 now authorizes the taking of depositions in proof of wills. It provides that whenever the subscribing witnesses to a will are dead, or absent from the state, or if in the state, are unable to be present in court to probate a will, on account of sickness or other disability, or where, if in the state, their attendance in court could not be enforced by subpoena in an ordinary civil action, any person interested in the probating of such will may have the depositions of witnesses taken to make the necessary proof to probate such will, as now provided by law, by posting notices in the clerk's office of the court in which it is desired to probate such will, of the time and place of taking such deposi- tions and giving the names in such notice of the witnesses whose depositions are to be taken, at least twenty days before the time set for taking the same; and by sei-ving a personal notice upon one or more persons who may be interested in the probating of such will, if any such person or persons reside within the county where such will is intended to be probated. ^^ § 494. Preservation and effect of proof. — "If it shall ap- pear from the proof taken that the will was duly executed, and that the testator at the time of executing the same was compe- tent to devise his property and not under coercion, such testi- mony shall be written down, subscribed by the witness examined and attested by said clerk, with his signature and seal of office; and the will, with such testimony and attestation, shall be re- corded by such clerk in a book kept for that purpose, and certi- fied by him to be a complete record."^^ It has been held that this section of the statute does not re- quire proof of the testamentary capacity and freedom from re- straint of the testator; but that the natural presumption of competency must prevail unless something countervailing it ap- pears; and that proof of the formal execution of the will itself " Duckworth v. Hibbs, 38 Ind. 78. "' Burns' R. S. 1908, § 3145. '' Burns' R. S. 1908, § 3142. 858 INDIANA PROBATE LAW. 49; will be held to supply grounds for inferring the competency of the testator." ''The record of the testimony, taken and recorded pursuant to the provisions of this act, and exemplifications of such record by the officer in whose custody the same may be, shall be received as evidence upon any controversy concerning any lands devised by such will, and shall be of the same force and effect upon the trial of such controversy, and may be rebutted, impeached and sustained in like manner as if taken in open court, if the witnesses examined when probate was allowed are dead, out of the state, or have become incompetent since the admission of such will to probate."^'* §495. Probating wills of absentees. — In l'A)7 the legisla- ture passed an act authorizing the probate of the wills of persons who had absented themselves and gone to parts unknown. This statute provides : That when any resident of this state shall have absented himself from his usual place of residence and gone to parts unknown for the space of five years; and when in such case thirty days' notice shall have been given to such person by pub- lication in a newspaper of general circulation published at the capital of tlie state and also in a paper published in such county, if there be any, it shall be presumed and taken by the court having probate jurisdiction in the county where such {person last resided that such person is dead, upon presentation of proper proof of such absence and of publication of notice. Any person interested in any part of the estate specified in the will of such absentee may have such will proven in the circuit court when in session, and such proof shall be taken in the county where such absentee last resided. The probate of a will as herein provided shall be subject to all the provisions of the law as now provided for the probate of a will upon the death of the testator, so far as the same may be applicable.^'' This act is the complement of § 2747, Burns' R. S. 1908, pro- viding for administration upon the estates of absentees. " Herbert v. Berrier, 81 Ind. 1. » Burns' R. S. 1908. § 3137. "^ Bums' R. S. 1908, § 3168. § 496 EXECUTION, REVOCATION AND PROBATE. 859 § 496. The effect of probate. — Whether or not under oiir mode of procedure for the probating of wills the record of such probate has the effect of an ordinary judgment, and as to the due execution of the will is res ad judicata, except in an action un- der the statute to contest such will, the Supreme Court says : "In our state a will may be admitted to probate before the clerk of the circuit court in vacation, or by the court in term time. In either case no notice is required, and when a will is admitted to probate before the court, the clerk is directed merely to make just such a record as he would make in vacation without direction. It has been held, and is the settled law of this state, that the clerk of the circuit court cannot exercise judicial powers."*"* An ex parte probate ascertains nothing but the prima facie validity of a will, and that the instrument is seemingly what it purports to be.*^^ The probate of a will is conclusive as to the fact that a will was executed, and the proceeding cannot be attacked collaterally; but such probate is conclusive only as to the fact of the valid execution of the will; it adjudicates noth- ing as to the meaning or operation of the will.*'" And until such will has been properly probated, it cannot be used for any purpose, either to vest or establish any right under it, or as evidence in any court of a right claimed ;*'^ but when once properly probated, the will becomes operative, and relates back to the date of the testators death.*'* A will duly probated in another state, although such probate ""Lange v. Dammier, 119 Ind. 567, effect of the will and its interpreta- 21 X. E. 749. tion, whereon titles under it rested, "Burns v. Travis, 117 Ind. 44, 18 were not determined in the proceed- >; £ 45 ings for its probate. These were mat- *=Faught V. Faught, 98 Ind. 470; ters for adjudication when rights and Poplin V. Hawke, 8 N. H. 124. The property were claimed under the will." rule upon this subject is thus stated in Evans v. Anderson, 15 Ohio St. 324. Fallon V. Chidester, 46 Iowa, 588, 26 ^ Pitts v. Melser, 72 Ind. 469; Am. Rep. 164, referring to the pro- ]Moore v. Stephens, 97 Ind. 271 ; Thie- bate of the will, the court says: "It hand v. Sebastian, 10 Ind. 454; Lucas did not establish the testamentary v. Tucker, 17 Ind. 41. character of the instrument, and give " Pitts v. Melser, 72 Ind. 469. In validity to a title based upon it. The this case it is said : "The will, under 86o INDIANA PROBATE LAW. § 496 was fraiululcntly procured, cannot in this state be attacked in an action to (|uiet title.*"^ The probate of a will is not in any particular the foundation of the title of the executor. Such title rests in the will itself. The will before probate is in no sense a nullity; it is still a will. The probate ascertains nothing but the original validity of the will as such. The act of the testator gave it life, his death con- summated the title, the probate only ascertaining the fact that the instrument is what it purports to be.''" The probate of a will relates back to the death of the testator, and all the property of the testator at the time of his death belongs of right to his executor.'"'^ The doctrine that letters testa- mentary issued after the probate of a will relate back to the death of the testator, and legalize all the intermediate acts of the ex- ecutor, must, however, be understood to cover only such acts as he could have legally done, had he been executor at the time."* The statute in this state provides that, "No executor named in the will shall interfere with the estate intrusted to him, further than to preserve the same until the issuing of letters ; but, for that purpose, he may prosecute any suit to prevent the loss of any part thereof.""" A judgment of the probate court, admitting a will to probate in which no executor is named, vests the personal property of which they claim, is not shown to " Ex parte Fuller, 2 Story (U. S.) have been probated in Shelby county, 327; Ingle v. Richards, 28 Beav. 361. or elsewhere in this state, either as a "Ex parte Fuller, 2 Story (U. S.) domestic or foreign will, and, until 327; Drury v. Natick, 10 Allen such probate has been had, a will can (Mass.) 169; Willard v. Hammond, neither operate to vest or establish, 21 N. H. 382; Hartnctt v. Wandell, 60 nor be used as evidence of, a right N. Y. 346, 19 Am. Rep. 194; Hall v. claimed thereunder." Naylor v. Ashby, 9 Ohio 96, 34 Am. Dec. 424; Moody, 2 Blackf. (Ind.) 247; Rogers Hill v. Tucker, 13 How. (U. S.) 458, V. Stevens, 8 Ind. 464; Lucas v. Tuck- 14 L. ed. 223. cr, 17 Ind. 41; Kerr v. Moon, 9 °* Bellinger v. Ford, 21 Barb. (N. Wheat. (U. S.) 565, 6 L. cd. 161. Y.) 311. '" Winslow v. Donnellv, 119 Ind. 565, '" Burns' R. S. 1908, § 2740 22 N. E. 12. § 497 EXECUTION, REVOCATION AND PROBATE. 86l the testator in the administrator, with the will annexed, by rela- tion from the death of the testator/'^ The order of court probating a will is a judicial act and is impervious to a collateral attack, and if it is not vacated in some appropriate proceeding brought for that purpose, within three years from the date the will is offered for probate, it becomes unimpeachable and conclusive as to all persons except infants, persons of unsound mind and persons absent from the state.'^ There is a right of appeal from the order of a court admitting a will to probate. And in such appeal it is necessary to make all the parties interested, including the executor and all those named as beneficiaries, both in the will and in the codicils, parties to such appeal. And as an action to establish and probate an alleged will is one to determine the property rights of living persons, such appeal is not governed by the statute relating to appeals in proceedings under the act for the settlement of decedents' estates, but such appeal must be taken under the provisions of the civil code.'- § 497. Certificate of probate. — After a will has been proven and probated, it is provided that, "Every will so proven shall have a certificate indorsed thereon or attached thereto, sub- stantially stating that it has been admitted to probate; that a complete record of it and the testimony of the witnesses, has been duly recorded, the names of such witnesses, and the title and page of the book in which it is recorded; which certificate shall be attested by the signature of the clerk of such court and his official seal."" "Every will so authenticated, or a complete copy of the record thereof, certified by the court in whose custody it may be, and •"Drury v. Natick. 10 Allen (Mass.) " Alorell v. Morell, 157 Ind. 179, 60 169. N. E. 1092 ; Vesey v. Day, — Ind. — , " Steinkuehler v. Wempner, 169 93 X. E. 210 ; Veasey v. Day, — Ind. Ind. 154, 81 N. E. 482; Winslow v. — , 94 N. 481; Kreuter v. English Donnelly, 119 Ind. 565, 22 N. E. 12; Lake Land Co., 159 Ind. Zll, 65 X. Blanchard v. Wilbur, 153 Ind. 387, 55 E. 4. N. E. 99; Bartlett v. Manor, 146 Ind. " Burns" R. S. 1908, § 3146. 621, 45 X. E. 1060. 862 INDIANA PROBATE LAW. § 498 attested by his signature and official seal, may be read in evi- dence without further proof. "^* The will itself is competent evidence, without the introduction of the record of probate, but if the record is introduced, it must all be admitted. The probate and the will can no more be severed, and the will admitted while the probate thereof is rejected, than the record of a deed can be severed from the certificate of acknowledgment. The record being competent evi- dence must be admitted as a whole." Whenever any authenticated copy of any will, or letters testa- mentary or of administration, the record whereof has been de- stroyed, shall be produced to the clerk of the proper court, he shall record the same in the same manner as if it were the original, and shall note upon the record the date at which it was originally recorded; which last record shall have the same force and effect the original record would have had if the same had not been destroyed.^" § 498. Record and probate of foreign wills. — Any written will that shall have been proved or allowed in any other state of the United States or in any foreign country, according to the laws of such state or country, may be received and recorded in this state in the manner and for the purposes mentioned in the next two following sections." Such will shall be duly certified under the seal of the court or officer taking such proof, or a copy of such will and the probate thereof shall be duly certified, under the seal of his court or office, by the clerk, prothonotary, or surrogate, who has the custody or probate thereof, and such certificate shall be attested and certified to be authentic and by the proper officer, by the presiding or sole judge of the court by whose clerk or prothon- otary such certificate shall have been made; or if such will •' Burns' R. S. 1908 J 3147. (Ind.) 313; Cline v. Gibson, 23 Ind. "Summers v. Copeland, 125 Ind. 11 ; Glidewell v. Spaugh, 26 Ind. 319. 466, 25 N. E. 555; Tenant v. Rum- " Burns' R. S. 1908, § 1318. field, 11 Ind. 130; Miles v. Wingate, 6 " Burns' R. S. 1908, § 3149. Ind. 458; Foot v. Glover, 4 Blackf. § 49^ EXECUTION, REVOCATION AND PROBATE. 863 were jKlmitted to probate before any officer, being his own clerk, his certificate of such will or record shall be attested and certi- fied to be authentic and by the proper officer by the presiding or sole judge, chancellor or vice-chancellor of the court liavuig supei'vision of the acts of such officer.'® Such will or copy, and the probate thereof, may be produced by any person interested therein, to the circuit court of the county in which there is any estate on which the will may op- erate; and if said court shall be satisfied that the instrument ought to be allowed as the last will of the deceased, such court shall order the same to be filed and recorded by the clerk, and thereupon such will shall have the same effect as if it had been originally admitted to probate and recorded in this state.'"" These sections of the statute contain all of the statutoiy pro- visions relating to what may be termed foreign wills, that is, written wills not executed in this state, which have been proven or allowed in any other of the United States, or in any foreign countiy, according to the laws of such state or counti-y before the production of such wills, or copies thereof and of the pro- bate thereof to the courts of this state.®^ In construing these sections relative to the proof and probate of foreign wills, the Supreme Court of this state, in one case, says : "By the above sections three things are required to render a foreign will valid in this state : First, the will must have been proven or allowed in some other of the American states, or in some foreign country, according to the laws of such state or country ; second, such will, after being proven or allowed, must be certified in the manner pointed out ; third, such will or copy, and the probate thereof, must be produced to the proper court of any county in which there is any estate on which the will may '' Burns' R. S. 1908, § 3150. bate thereof, duly certified, &c." Har- '"Burns' R. S. 1908, § 3151. "It will ris v. Harris, 61 Ind. 117. be seen, that provision is made, in said ^"Harris v. Harris, 61 Ind. 117; as section 35, for the production in the to probate of foreign will, see, Par- courts of this state, first, of such nell v. Thompson, 81 Kan. 119, 105 wills, duly certified. &c., and, second- Pac. 502, 33 L. R. A. (N. S.) 658. ly, of copies of such wills and the pro- 864 INDIANA PROBATE LAW. § 498 operate; and if said court shall be satisfied that the instrument jught to be allowed as the last will of the deceased, such court shall order the same to be filed and recorded by the clerk. When these things have been done, such will shall have the same effect as if it had been originally admitted to probate and recorded in this state.'"' No will executed in this state, and allowed or proven in any other state, shall be admitted to probate in this state, unless executed according to the laws of this state.^" It has further been settled by the decisions of our Supreme Court that a foreign will can have no effect or operation until it has been so proved before the proper court of some county of this state where some part of the estate of the testator is, and has been so ordered to be recorded ; and such proof must be made to the satisfaction of the court, and the order made by the court. The court in hearing the proof and making the order acts judicially, and the order should be spread upon the order- book of the court. The clerk, in making a record of such, acts only in a ministerial capacity.*^ And where a will is executed and admitted to probate in any other state or country, its execution and probate will be gov- erned by the laws of that state or country, and if valid by such laws will be valid and executed in this state, if proved and re- corded here as required by these statutes.^* It is also held that the execution of a will in another state, devising land in this state, must be in conformity to the laws *^ State V. Joyce, 48 Ind. 310. In shall have the same force and effect Lucas V. Tucker, 17 Ind. 41, the court as if it had been originally admitted says : "The substance of these enact- to probate in this state ; that letters ments is, that if such will is proved shall then be issued thereon, and fur- and certified in the manner therein ther proceedings had, as in cases orig- designated, and if upon its production inally arising in this state." to the probate court of a county in ^ Burns' R. S. 1908, § 3152. vi^hich there is any estate 'upon which *' Rogers v. Stevens, 8 Ind. 464; said will may operate, said court shall Thieband v. Sebastian, 10 Ind. 454 ; be satisfied that the instrument ought Lucas v. Tucker, 17 Ind. 41. to be allowed,' &c., the same shall be ^ State v. Joyce, 48 Ind. 310. filed and recorded bv the clerk, and § 499 EXECUTION, REVOCATION AND PROBATE. 865 of this state. ®^ This is in accordance with the principle of gen- eral law, that the title to and disposition of real property must be exclusively subject to the laws of the country where the real estate is situated.'^'^ This rule limits the application of the preceding one to wills devising personalty. The title to personal property passes by the law of the place of the owner's residence. As a general rule it may be said that the proper place to probate a will is in the proper court of the county where the testator was last domiciled, and this is true irrespective of the place where the will was made. The law of one's last domicile not only decides what constitutes one's last will, but whether the party died testate or intestate, and that all questions as to the forms and solemnities attending a due execution of the will were complied with according to the law of the domicile.*' § 499. Lost wills, how established. — No wall of any testa- tor shall be allowed to be proven and established as lost or destroyed unless the same shall be proven to have been in exist- ence at the time of the death of the testator, or be shown to have been destroyed in the lifetime of the testator without his consent, or otherwise fraudulently disposed of, nor unless the provisions shall be clearly proven by two witnesses, or by a correct copy and the testimony of one witness. ^^ In legal contemplation an insane man can neither form nor manifest an intention, so where a testator in a fit of temporary insanity destroys his will it is not an act done with his consent and does not prevent its proof and establishment as a destroyed will under this statute.®^ ^Calloway v. Doe, 1 Blackf. (Ind.) 23 Ohio St. 491; Reed v. Bishops, — 372 ; Lucas v. Tucker, 17 Ind. 41. Ind. App. — 97 N. E. 1023. *« United States v. Crosby, 7 Cranch "^ Burns' R. S. 1908, § 3167. (U. S.) 115, 3 L. ed. 287; Kerr v. ^ In re Forman's Will, 54 Barb. (N. Moon, 9 Wheat. (U. S.) 565, 6 L. ed. Y.) 274; Timon v. Claffy, 45 Barb. 161; Darby V. Mayer, 10 Wheat. (U. (N. Y.) 438; Idley v. Bowen, 11 S.) 465, 6 L. ed. 367. As to the right Wend. (N. Y.) 227. In Forbing v. to sell lands in this state under a for- Weber, 99 Ind. 588, it is said : "In eign will, see §§ 86, 87, 88, ante. our opinion, the evidence shows that " Schouler Exrs., 17 ; 19 Am. & Eng. in legal contemplation, and within the Encyc. Law 173; Converse v. Starr, 55 — Pro. Law. 866 INDIANA PROBATE LAW. i? 499 In a proceeding to prove and establish a will which has been destroyed, proof that the testator had caused such will to be recorded in the recorder's office, and that such record is a correct copy of the will; and the further evidence of the attesting wit- nesses to the will destroyed that the original will was duly ex- ecuted, is sufficient to establish such will.''*' And when it has been proven or admitted that a will has been lost or destroyed, its contents may be proven by the person who wrote it.^' The statute does not define how or what kind of an action shall be brought to establish a lost or destroyed will, nor does it clearly define the jurisdiction, but it seems to recognize such jurisdiction in the circuit court, and it may be assumed that such court will entertain a complaint for such purpose. Such complaint must clearly show that the will sought to be estab- lished has either been lost or destroyed. It should allege one or the other as a cause for the action.^" A lost or destroyed will cannot be used as evidence to sustain, or otherwise affect, the title to property devised or bequeathed by it, until it has been proved or established according to law.®^ meaning of the statute, the will was not have the force of a record, but it destroyed without the testator's con- did exhibit a copy of the will, and, sent. It is shown by the testimony of when proper supplementary testimony several witnesses, that it was de- was given by the person who made stroyed, with other papers, when the the copy, the instrument as copied was testator was acting wildly, threaten- properly read in evidence." ing to kill his son-in-law, and while "' Ford v. Teagle, 62 Ind. 61. he was engaged in other acts of vio- °- Raster v. Raster, 52 Ind. 531. In lence. These witnesses, having stated an action to establish a lost will, a the facts, declared that in their opin- jury trial cannot be demanded as a ion he was of unsound mind at the matter of right. Wright v. Fultz, 138 time the will was destroyed. If this Ind. 594, 38 N. E. 175. In an action be true it follows that he was not le- to establish a will, allegations of the gaily capable of consenting to any execution of the will, the intestacy of get." the testatrix, and the destruction of *" Forbing v. Weber, 99 Ind. 588. In the will after her death, sufficiently this case it is said: "The record of show the existence of the will at the the will was not competent evidence death of testatrix. Jones v. Casler, as a record, for the will was not enti- 139 Ind. 382, 38 N. E. 812, 47 Am. St. tied to go upon record, but it was 274. competent for the purpose of exhibit- "' Mauck v. Melton, 64 Ind. 414. ing a copy of the instrument. It did § 499 EXECUTION, REVOCATION AND PROBATE. 86/ In an action to set aside a will which has been admitted to probate, and to prove and establish a will alleged to be lost, those who have purchased land from devisees under the probated will are necessary parties defendant.®* The complaint in such a case should show that the decedent executed a will, and that it was afterwards destroyed without his consent in his lifetime or otherwise fraudulently disposed of, or if lost that such will was in existence at the time of the death of the testator.®'^ The loss or destruction of the will must occur after the death of the testator, unless it was fraudulently de- stroyed in his lifetime.''^ Such complaint need not state the time nor place of destruction, nor by whom, when or how it was destroyed.®^ The complaint in such actions need not set out the exact words of the will alleged to be lost or destroyed. In the ab- sence of a copy this could hardly be done. All that can reason- ably be required of the pleader under such circumstances is to show in general terms the disposition which the testator made of his property by the instrument, and that it purported to be his will and was duly executed, and attested by the requisite ** Roberts v. Abbott, 127 Ind. 83, 26 real estate was to be divided equally N. E. 565. The issue to be tried in an between said child and plaintiff, and action to establish a lost will is, "did that, by reason of the destruction of he devise or not?" and when a de- said will, only the substance thereof fendant is not concerned in its execu- can be given, is good on demurrer, tion, an answer of general denial is Jones v. Casler, 139 Ind. 382, 38 N. sufficient. Wright v. Fultz, 138 Ind. E. 812, 47 Am. St. 274. 594, 38 X. E. 175. In an action to es- '-^Kellogg v. Ridgely, 161 Ind. 110, tablish a destroyed will, a complaint 67 N. E. 929; Gfroerer v. Gfroerer, which alleges that the testatrix de- 173 Ind. 424, 90 N. E. 757. vised certain lands to her husband for °* Harris v. Harris, 36 Barb. (N. life, and, after his death, to the plain- Y.) 88; In re Kennedy's Will, 167 N. tiff in fee, provided testatrix had no Y. 163, 60 N. E. 442. child living at the time of the death " Gfroerer v. Gfroerer, 173 Ind. of said husband, and that, if testatrix 424, 90 N. E. 757. should have a child at such time, the 868 INDIANA PROBATE LAW. 499 number of witnesses.*^ Nor will such complaint be bad for failing to allege the county and state where the testator died.®** It would also seem that such complaint should be sworn to.^ The answer, however, in such actions need not be sworn to." Such actions are not triable by a jury, but must be tried by the court, the action being one of equitable jurisdiction.^ The right to set aside a will and revoke the probate thereof is of statutory origin, while the right to establish a lost or destroyed will is of equitable cognizance and has statutory recognition only in respect to the proof required, the record of the decree and the restraining proceedings in relation to the estate pending the litigation. But the two rights may be enforced in one proceed- ing,^ and one will and its probate be substituted for another will and its probate. Such a proceeding, though, involves the contest of the latter will and the rules of procedure in cases of contest must be observed.^ "^ Jones V. easier, 139 Ind. 382, 38 N. E. 812, 47 Am. St. 274; Allison v. Allison, 7 Dana (Ky.) 91; Early v. Early, 5 Redf. (N. Y.) lid. As is said in Anderson v. Irwin, 101 111. 411: "The instrument in controversy hav- ing been destroyed without the fault of the defendant in error, * * * and there not appearing to be any copy of it in existence, it would be equivalent to denying the complainant relief alto- gether to require her to prove the very terms in which it was conceived." "'Jones V. easier, 139 Ind. 382, 38 N. E. 812, 47 Am. St. 274. In Gaines V. ehew, 2 How. (U. S.) 619, 11 L. ed. 402, Mrs. Gaines sought to estab- lish a lost will in her favor, and to her bill in equity for that purpose she made the purchasers under another will parties defendant. The Supreme eourt of the United States held that such purchasers were proper parties. ^ Stafford V. Bartholomew, 2 Ind. 153; Pennington v. Governor, 1 Blackf. (Ind.) 78; Findlay v. Hinde, 1 Pet. (U. S.) 241, 7 L. ed. 128. 'Wright V. Fultz, 138 Ind. 594, 38 N. E. 175. The court in this case says : "The appellant's counsel bare- ly suggest that the answer in this case to be available should have been veri- fied. It seems absurd to assume that a party should be required to file a plea of non est factum to an alleged will, when it is not contended that he had anything to do with its execu- tion." 'Wright V. Fultz, 138 Ind. 594, 38 N. E. 175. See Jones v. Gasler, 139 Ind. 382, 38 N. E. 812, 47 Am. St. 274. * Bartlett v. Manor, 146 Ind. 621, 45 N. E. 1060; McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336; Roberts v. Abbott, 127 Ind. 83, 26 N. E. 565; Burns v. Travis, 117 Ind. 44, 18 N. E. 45. ^ Burns v. Travis, 117 Ind. 44, 18 N. E. 45 ; Bartlett v. Manor, 146 Ind. 621, 45 N. E. 1060. § 500 EXECUTION, REVOCATION AND PROBATE. 869 § 500. The degree of proof required. — The statute requires that the provisions of the will alleged to be lost, or destroyed, must be "clearly proven" by at least two witnesses. When the correctness of a copy of such will is once established such copy is equivalent to one witness.*' There is no difference between the rules of evidence applicable to the case of a lost will and those rules governing the reproduction of any other lost instrument.'^ The usual ground must be laid for introducing secondary evi- dence of the contents of a will alleged to be lost.^ Where the court must depend upon the memory of witnesses for proof of the substance of a will lost, or destroyed, it should require the fullest and most stringent proof. It is said that as a result of the exercise of such severe scrutiny of the evidence offered very few lost wills are established unless there appears to be good reason to believe that they were purposely suppressed, or destroyed. In all other cases the mere fact of their being lost makes in favor of a presumption of revocation.^ Declarations of the testator are admissible to show the making of a will, its continued existence, and in proof of its contents also to rebut or confirm the presumption of its revocation.^" " Burns' R. S. 1908, § 3167. 14 Hun (X. Y.) 396; Allison v. Alli- ■ 1 Redf. on Wills, p. 2. It is said son, 7 Dana (Ky.) 91. The contents in Jones v. Casler, 139 Ind. 382, 38 N. of a will which can be produced, can- E. 812, 47 Am. St. 274: "We would not be proven by parol, and if such not be understood as departing in the evidence is admitted over proper ob- slightest from the requirement that jection it constitutes a reversible er- the provisions of the will shall be ror. McNear v. Roberson, 12 Ind. clearly proven, but we do not incline App. 87, 39 N. E. 896. to the rule contended for by counsel '" Best Ev. 401 ; Taylor Ev. 168 ; 1 for appellant, that such strictness Greenl. Ev., § 558n; In re Marsh, 45 shall be required as would practically Hun (N. Y.) 107; Pickens v. Davis, defeat the ends of justice and pro- 134 Mass. 252, 45 Am. Rep. 322n ; Fos- mote the evil intended to be rem- ter's Appeal, 87 Pa. St. 67, 30 Am. edied." Rep. 340 ; Mercer v. Mackin, 14 Bush. ^Voorhees v. Voorhees, 39 N. Y. (Ky.) 434; Collagan v. Burns, 57 Me. 463, 100 Am. Dec. 458; Havard v. 449; Patterson v. Hickey, 32 Ga. 156; Davis. 2 Binn. (Pa.) 406; Taylor on Lawyer v. Smith, 8 Mich. 411, 77 Am. Ev., §§ 495, 935. Dec. 460. ' 2 Redf. Wills, p. 16 ; Hook v. Pratt, 8/0 INDIANA PROBATE LAW. §500 But such post-testamentary declarations of the testator, while they may be received to corroborate the testimony of other wit- nesses as to the contents of such lost or destroyed will, are not sufficient, of themselves, to supply the necessary testimony of other witnesses as to such provisions/^ While the testimony of two witnesses, or of a correct copy of the will and one witness, may be sufficient to establish a will lost or destroyed, it is an unquestionable requisite that the due execution of the instrument must also be proved as in ordi- nary cases/^ The burden of proof in such action is upon the persons seeking to establish the will/^ While proof of the substance of the provisions of the will is accepted as sufficient, by the term provisions it is not intended to comprehend all of the terms of the will, including- the ap- pointment of executors, revocation of former wills and the like, but only such provisions as conferred some property right upon devisees or legatees.^* " McDonald v. ISIcDonald, 142 Ind. 55, 41 N. E. 336; Inlow v. Hughes, 38 Ind. App. 375, 76 N. E. 763. "Bailey v. Stiles, 1 Green Ch. (N. J.) 220. ^Newell V. Homer, 120 Mass. 277; Chisholm v. Ben, 7 B. Mon. (Ky.) 408; Graham v. O'Fallon, 3 Mo. 507. It is enough to prove the substance of the will, without proving the precise statement of the language or terms used in such will. Davis v. Davis, 2 Addams 277; McNally v. Brown, 5 Redf. (N. Y.) 372; Morris v. Swaney, 7 Heisk. (Tenn.) 591. Held, that in an action to establish such a will, a charge that the provisions thereof must be clearly proved by two wit- nesses, and that, if the jury found any fact "established by the preponderance of the evidence," they should state such fact in the special verdict, is not erroneous. Jones v. Casler, 139 Ind. 382, 38 N. E. 812, 47 Am. St. 274. "Wallis V. Wallis, 114 Mass. 510; Vining v. Hall, 40 Miss. 83. In Jones V. Casler, 139 Ind. 382, 38 N. E. 812, 47 Am. St. 274, it is said : "There are cases which hold that if the devises are proven only in part those which are proven satisfactorily may be pro- bated. Dickey v. Malechi, 6 Mo. 177 ; 34 Am. Dec. 130 ; Burge v. Hamilton, 72 Ga. 568; Skeggs v. Horton, 82 Ala. 352, [2 So. 110] ; Dower v. Seeds, 28 W. Va. 113, 57 Am. Rep. 646. It is not essential to our conclusion, that we should adopt this rule in its apph- cation to both lost and fraudulently destroyed wills, but it cannot be ob- jected by a spoliator, who has de- stroyed the evidence of provisions which may benefit him, that the pro- visions which have been proven ac- § 501 EXECUTION, REVOCATION AND PROBATE. 87I The decree rendered in such actions of course should be framed according to the facts found and the issues raised. If the find- ing is in favor of estabhshing the will the copy of such will or the substance of it as proven should be set out in the decree. ^^ While in the matter of costs such suit rests largely in the dis- cretion of the court trying the action, they are in cases where the w^ill is established, usuall}' taxed to the estate.^® But where the loss or destruction of the will is due to the fault or negligence of any one the costs should be taxed against the person guilty of the negligence or misconduct.^" § 501. Decree to be recorded. — After any will, lost or de- stroyed, has been properly established and a decree to that effect rendered, the statute provides for its recording, etc., as follows : "Whenever any will shall have been lost or destroyed, and the same shall have been established according to law, the decree of the court establishing such will shall be recorded in the proper book thereof by the clerk of the proper court in which such will might have been proven if not lost or destroyed; and letters tes- tamentary or of administration w^th the will annexed shall be issued thereon, in the same manner as wills duly proved before such court or the clerk thereof, and letters of administration previously granted upon the same estate shall be revoked ; but the court before which proceedings were had to contest the validity, due execution, or to prove such will, or to establish a lost or cording to law shall not be effective, to find whether such will had been and this should be especially true proven by two witnesses, as required, where it does not appear that provis- the presumption being that the will ions not so fully established would was so proven. Jones v. Casler, 139 probably modify those provisions Ind. 382, 38 N. E. 812, 47 Am. St. 274. which are fully established." ^'^ Wyckoff v. Wyckoff, 16 N. J. Eq. ^ Dower v. Seeds, 28 W. Va. 113, 57 401 ; Everitt v. Everitt, 41 Barb. (N. Am. Rep. 646; McXally v. Brown, 5 Y.) 385; Succession of Gaines, 38 La. Redf. (X. Y.) 372. It is not neces- Ann. 123; Collyer v. Collyer, 4 Dem. sary, in an action to establish a de- (N. Y.) 53. stroyed will, to prove a search for, " Foster v. Foster, 1 Addams, 182 and a failure to find, said will before Martin v. Laking, 1 Hag. Ec. 244 the commencement of the action. In Taylor v. Bennett, 1 Ohio C. C. 95 an action to establish a will, a special Podmore v. Whatton, 3 S. & T. 449. verdict is not vitiated by the omission 872 INDIANA PROBATE LAW. § 5OI destroyed will, shall have authority to restrain the executor or administrator acting from any proceedings which it may judge injurious to the heirs or devisees of the deceased."^* "After the service of such restraining order, such administra- tor, executor, or administrator with the will annexed, shall sus- pend all proceedings in relation to the estate of the testator, except the collection and recovery of moneys and the payment of debts, and the performance of such duties in the disposal of the property of the estate not inconsistent with the rights of the parties interested in such estate, whether the will in con- troversy or the probate thereof should be defeated or established, until a decision be had in such case."^® The last clause of the first section above set out and the pro- visions of section last quoted, from their phraseology seem in- tended to apply in all cases of the contest of wills, without regard to whether they are lost or destroyed or not. The language is certainly too general to be confined to cases involving the valid- ity and due execution of lost or destroyed wills only. The right of the proper court to issue restraining orders in all cases in- volving the validity and due execution of any will, pending a decision, I think will not be disputed. " Burns' R. S. 1908, § 3165. ^ Burns' R. S. 1908, § 3166. CHAPTER XXIV. CONSTRUCTION OF WILLS. i 502. General rules in regard to con- § 514. struction, etc. 515. 503. Rules as to intention. 504. Rules as to repugnancy. 516. 505. Rules for supplying words. 517. 506. As to extrinsic evidence. 518. 507. As to parol evidence. 519. 508. Miscellaneous rules. 520. 509. Rule as to personal property. 521. 510. As to precatory words. 522. 511. Declarations of the testator. 523. 512. Terms descriptive of classes. 524. 513. Disinheritance of heirs. Passes the entire estate, when. Conditions in restraint of mar- riage. When a devise shall not lapse. A devise of rents and profits. The rule in Shelley's case. Exception to the rule. The estate liable for debts. When legacies a charge. Rights of husband and wife. When devise passes fee simple. Vested estates — Remainders. §502. General rules in regard to construction, etc. — It may be stated as a rule which has become almost axiomatic, that all parts of a will are to be construed in relation to each other so as, if possible, to form one consistent whole, and thus uphold and give effect to all the provisions of the will.^ Where a will is open to two constructions, and one will give effect to the whole instrument, while the other will destroy a part, the former construction must be adopted." 'Brumfield v. Drook, 101 Ind. 190; Kelly V. Stinson, 8 Blackf. (Ind.) 387; Baker v. Riley, 16 Ind. 479; Craig v. Secrist, 54 Ind. 419; Fraim v. Milli- son, 59 Ind. 123; Cann v. Fidler, 62 Ind. 116; Lofton v. Moore, 83 Ind. 112; Hinds v. Hinds, 85 Ind. 312; Waters v. Bishop, 122 Ind. 516, 24 N. E. 161 ; Jenkins v. Compton, 123 Ind. 117, 23 N. E. 1091; Nading v. Elliott, 137 Ind. 261, 36 N. E. 695; Beach, Wills, p. 517; Corey v. Springer, 138 Ind. 506, Z1 N. E. 322. In construing a will, the intention of the testator is to be sought for in its provisions, and it is to be given effect, if not contrary to law. Sibert v. Cox, 100 Ind. 392; Moore v. Gary, 149 Ind. 51, 48 N. E. 630. = Butler v. Moore, 9^ Ind. 359 ; Pru- 873 874 INDIANA PROBATE LAW. §502 The general intent, and not particular phrases, controls and overrides all merely special or particular expressions found in a will. Faulty expressions and inaccurate words will not be pemiitted to defeat the intention of the testator; nor can such intention be thwarted by detached clauses. Clauses in a will are to be construed by the aid of other clauses or words with which they are grouped.^ \\'ords in wills are to be construed in their common or ordinary sense, and no word can be rejected and another substituted in its place without the clearest certainty that such was the intention of the testator.* The materials of this and the five succeeding sections have been supplied from the able treatises of Redfield, Jarman, and Williams, and by Wigram's work on Extrinsic Evidence. The subject is too ample a one to attempt, in a work of this kind, more than a mere statement, as concise as possible, of the more important principles. The general rules of constiTiction by Jarman will always den V. Pruden, 14 Ohio St. 251 ; Brum- field V. Drook, 101 Ind. 190. 'Castor V. Jones, 86 Ind. 289. A testator has a right to assign a mean- ing to the words employed by him, and when that meaning is fully and clearly apparent, it will control and will take from the words their usual technical signification. Ridgeway v. Lamphear, 99 Ind. 251. * State V. Joyce, 48 Ind. 310. Words employed in a will must be given their ordinary meaning, unless there is lan- guage in the will which indicates clearly that the testator did not use the words in question in their plain and ordinary sense. West v. Rassman, 135 Ind. 278, 34 X. E. 991. The chan- cery powers of a court cannot be in- voked to reform a will by eHminating words or phrases and supplying others, so as to make the instrument conform to what may be supposed to have been the real intention of the testator. It is only in the clearest cases that courts will undertake to substitute or change the words of a will. Shimer v. Mann, 99 Ind. 190, 50 Am. Rep. 82; Gibson v. Seymour, 102 Ind. 485, 2 N. E. 305, 52 Am. Rep. 688; Sturgis v. Work, 122 Ind. 134, 22 X. E. 996, 17 Am. St. 349; Waters v. Bishop, 122 Ind. 516, 24 X. E. 161. A testator is presumed to have used the words in which he expressed his in- tentions according to their strict and primary acceptation, and if, when ap- plied to the extrinsic facts referred to, they are sensible, parol evidence is not admissible to show that they were used in some other sense; but it is otherwise if the words, in their strict and primary sense, are meaningless when applied to such extrinsic facts. Daugherty v. Rogers, 119 Ind. 254, 20 X. E. 779, 3 L. R. A. 847n. § 502 CONSTRUCTION OF WILLS. 875 prove of great practical convenience, and are here given at length. While they have acquired the weight of authority, they yet call for the exercise of considerable discretion in their appli- cation to particular cases. They are as follows : 1. A will of real estate, wherever made, and in whatever language written, is construed according to the law of the place or countiy in which the property is situate, but a will of person- alty is governed by the law of the domicile. 2. Technical words are not very necessary to give effect to anv species of disposition in a will.^ 3. The construction of a will is the same at law as in equity, the jurisdiction of each being governed by the nature of the subject, though consequences may differ." 4. A will speaks for some purposes, from the period of its execution, and for others, from the death of the testator, but never operates until the latter period.' 5. The heir is not to be disinherited without an express de- vise, or necessary implication, such implication importing not natural necessity, but so strong a probability that an intention to the contrar}- cannot be supposed.^ '^ The cardinal rule in the construe- 498, 19 N. E. 468 ; Wright v. Charley, tion of wills is to ascertain and give 129 Ind. 257, 28 X. E. 706. A will eflfect to the intention of the testator speaks from the daj- of the death of but, when purely technical terms are the testator. Brown v. Critchell, 110 used, the technical meaning must be Ind. 31, 7 N. E. 888, 11 N. E. 486; assigned them, unless the context Hopkins v. Ratliflf, 115 Ind. 213, 17 N. clearly shows that the testator em- E. 288; Heilman v. Heilman, 129 Ind. ployed them in a diflferent sense. 59, 28 X. E. 310. Ridgeway v. Lanphear, 99 Ind. 251. ' Butler v. Aloore, 94 Ind. 359. An *Lutz V. Lutz, 2 Blackf. (Ind.) 72; heir cannot be disinherited unless the Baker v. Riley, 16 Ind. 479. intention to disinherit be expressed, ^ Kelly V. Stinson, 8 Blackf. (Ind.) or is to be clearly and necessarily im- 387. Where real estate is devised to plied. Where one construction of an one, coupled with a devise over, in ambiguous will leads to the disinher- case of his death without issue, and itance of the heir, and another to a the primary- devisee survives the testa- result favorable to the heir, the latter tor, he takes an absolute fee, the construction must be adopted. Crew words referring to a death meaning a v. Dixon, 129 Ind. 85, 27 X. E. 728; death in the lifetime of the testator. Aspy v. Lewis, 152 Ind. 493, 52 X. E. Harris v. Carpenter, 109 Ind. 540, 10 756. N. E. 422; Hoover v. Hoover, 116 Ind. 876 INDIANA PROBATE LAW. ?502 6. Merely negative words are not sufficient to exclude the title of the heir or next of kin. There must be an actual gift to some other definite object. 7. All parts of a will are to be construed in relation to each other, and so as. if possible, to form one consistent whole; but where several parts are absolutely irreconcilable, the latter must prevail." 8. Extrinsic evidence is not admissible to alter, detract from, or add to the terms of a will.'^ 9. Nor is it admissible to vary the meaning of words, and therefore to attach a strained and extraordinaiy sense to a par- ticular word, in an instalment executed by the testator, in which the same word occurs in that sense. 10. But tlie court will look at the circumstances under which • Evans v. Hudson, 6 Ind. 293 ; Hol- defer v. Teifel. 51 Ind. 343; Butler v. Moore, 94 Ind. 359. In the construc- tion of wills, courts seek to ascertain and promulgate the intention of the testator. In ascertaining such inten- tion, isolated statements and clauses of the testament will not be selected, and their meaning determined, with- out any relation to other clauses or parts of the will. The courts will look to the whole instrument, and construe each part with relation to the language used in other parts of the instrument, which sheds any light on the contro- verted portion of the will. Its legal meaning and effect cannot be varied by parol evidence. Judy v. Gilbert, 11 Ind. 96, 40 Am. Rep. 289; Lofton v. Moore, 83 Ind. 112; Hinds v. Hinds, 85 Ind. 312; Downie v. Buennagel, 94 Ind. 228; Becker v. Becker, 96 Ind. 154; Cooper v. Hayes, 96 Ind. 386; Pugh V. Pugh, 105 Ind. 552, 5 N. E. 673; Millett v. Ford, 109 Ind. 159, 8 N. E. 917; Commons v. Commons, 115 Ind. 162, 16 N. E. 820, 17 N. E. 271; Daugherty v. Rogers, 119 Ind. 254, 20 X. E. 779, 3 L. R. A. 847n; Waters v. Bishop, 122 Ind. 516, 24 N. E. 161 ; Mills v. Franklin, 128 Ind. 444, 28 N. E. 60; Eubank v. Smiley, 130 Ind. 393, 29 N. E. 919; Maris v. Wolfe, 46 Ind. App. 416, 92 N. E. 661. '" Sturgis v. Work, 122 Ind. 134, 22 X. E. 996, 17 Am. St. 349. A latent ambiguity, which will justify the ad- mission of evidence of extrinsic facts, is one which may arise, not upon the face of the will itself, but from facts therein referred to, which are extrin- sic to the instrument. Daugherty v. Rogers, 119 Ind. 254. 20 X. E. 779, 3 L. R. A. 847n. Whenever, in applying a will to the objects or subjects therein referred to, extrinsic facts appear which produce a latent ambiguity, the court may inquire into every other material extrinsic fact or circumstance to which the will refers, and to the re- lation which the testator occupied to those facts, in order to arrive at a correct interpretation of the language actually employed. Cruse v. Cunning- ham, 79 Ind. 402; Black v. Richards, 95 Ind. 184. § 502 CONSTRUCTION OF WILLS. 877 the devisor made his will, as the state of his property, his family, and the like/^ 11. In general, implication is admissible only in the absence of, and not to control, an express disposition, 12. An express and positive devise cannot be controlled by the reason assigned, or by subsequent ambiguous words, or by inference and argument from other parts of the will. 13. The inconvenience or absurdity of a devise is no ground for varying the construction, where the terms of it are unam- biguous, nor is the fact that the testator did not foresee all the consequences of his disposition a reason for varying it. But where the intention is obscured by conflicting expressions, it is to be sought rather in a rational and consistent than an irrational and inconsistent purpose.^" 14. The rules of construction cannot be strained to bring a devise within the rules of law, but it seems that where the will admits of two constructions, that is to be preferred which will render it valid. 15. Favor or disfavor to the object ought not to influence the construction. 16. Words in general are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in an- other sense can be collected, and that other can be ascertained ; and they are in all cases to receive a construction which will give to every expression some effect, rather than one that will render any of the expressions inoperative;^^ and of two modes of construction, that is to be preferred which will prevent a total or even partial intestacy.^* 17. \\^here a testator uses technical words, he is presumed to employ them in their legal sense, unless the context clearly indicates the contrary.^'^ "Jackson v. Hoover, 26 Ind. 511; son v. White, 133 Ind. 614, 33 N. E. Daugherty v. Rogers, 119 Ind. 254, 20 361, 19 L. R. A. 581. N. E. 779, 3 L. R. A. 847n; Corey v. "Groves v. Culph, 132 Ind. 186, 31 Springer, 138 Ind. 506, 37 N. E. 322. N. E. 569. "Jackson V. Hoover, 26 Ind. 511. " Ridgeway v. Lanphear, 99 Ind. "State V. Joyce, 48 Ind. 310; Wil- 251. gyg INDIANA PROBATE LAW. § 502 More recent decisions have so relaxed this rule, that technical lanouage is now given a more reasonable construction, and will receive either a technical or popular construction, according to circumstances. 18. Words occurring more than once in a will shall be pre- sumed to be used always in the same sense, unless a contrary intention appear from the context, or unless the words be applied to a different subject." 19. Words and limitations may be transposed, supplied or rejected, where warranted by the immediate context, or the general scheme of the will, but not merely on a conjectural hy- pothesis of the testator's intention, however reasonable, in oppo- sition to the plain and obvious sense of the language of the instrument. ^^ 20. Words which it is obvious are miswritten may be cor- rected. 21. The construction is not to be varied by events subsequent to the execution, but the court, in determining the meaning of particular expressions, will look to possible circumstances in which they might have been called upon to affix a signification to them. 22. Several independent devises, not grammatically connected, or united by the expression of a common purpose, must be con- strued separately and without relation to each other. There must be an apparent design to connect them. 23. Where a testator's intention cannot operate to its full extent, it shall take effect as far as possible. 24. A testator is rather to be presumed to calculate on the dispositions of his will taking effect than on the contrary, and accordingly a provision for the death of devisees will not be con- " State Bank v. Ewing, 17 Ind. 68. construction will be adopted which "Jackson v. Hoover, 26 Ind. 511; casts the property where the law State V. Joyce, 48 Ind. 310; Butler v. would cast it if no will had been exe- Moore, 94 Ind. 359. If the intent of cuted. Kilgore v. Kilgore, 127 Ind. the testator is doubtful, and two con- 276, 26 N. E. 56. structions are applicable thereto, that § 503 CONSTRUCTION OF WILLS. 879 sidered as intended to provide exclusively for lapse, if it admits of any other construction/^ General rules must be adhered to, but as all cases are affected by particular circumstances peculiar to themselves, it is not always easy to adapt such general rules to purely peculiar cir- cumstances; however, these rules above must be a guide to truth and not to error, and it will be found that a wise and judicious application of them will effect this. A mere analogy should not have other weight than merely to assist to a decision. But when there are provisions in a will which are conflicting and inconsistent, that which is posterior in local position must be taken to denote the last intention of the testator; the subsequent words being considered to denote a subsequent intention.^'' § 503. Rules as to intention. — It may be remarked that the rules for construction of wills are less rigid than in regard to other instruments, the principle being to ascertain the most ob- vious intent of the testator.^" The intention of the testator is the object of all construction, but this general proposition is subject to the following qualifi- cations : 1. The intention must be expressed in the words of the will.^^ 2. The general intent, if clear, will control particular terms. ^" A testator devised land to his down by the doubtful expressions con- daughter for life, with remainder tained in the subsequent clause of the over in fee to her child or children, in will, and that it passed to the testa- case she should survive him, leaving a tor's widow upon the death of her child or children. By a subsequent great-grandson. Bruce v. Bissell, 119 clause of the will the testator devised Ind. 525, 22 X. E. 4, 12 Am. St. 436; to his widow a life estate in the same Aspy v. Lewis, 152 Ind. 493, 52 N. E. land, and after her death to his right 756. heirs in fee. The daughter survived ^^ Evans v. Hudson, 6 Ind. 293; the testator, but died soon after, leav- Holdefer v. Teifel, 51 Ind. 343; ing a son, who also died, leaving a Critchell v. Brown, 72 Ind. 539; Con- son. The latter died unmarried and over v. Stringer, 53 Ind. 248; Butler without issue, leaving the testator's v. Moore, 94 Ind. 359. widow, his great-grandmother, as his ""Kilgore v. Kilgore, 127 Ind. 276, next of kin. Held, that the daughter's 26 N. E. 56. son took a vested remainder in fee, ^^ Pugh v. Pugh, 105 Ind. 552, 5 N. which was in nowise affected or cut E. 673. 880 INDIANA PROBATE LAW. § 503 3. Words are to have that force which authority gives them, unless the contrary is clear. 4. Clearly expressed intention controls doubtful construction. 5. Punctuation is not authoritative in fixing construction. 6. The ^vill should be upheld and made reasonable as far as practicable. 7. Courts will give some meaning to a will, unless absolutely impossible. The rule is universal in American courts, that the plain and unambiguous words of the will must prevail, and are not to be controlled or qualified by any conjectural or doubtful constinic- tions growing out of the situation, incumbrances or condition of the testator, his property or family. Extraneous facts may aid but cannot control the construction of words; the language should receive its ordinary interpretation except where some other is necessarily or clearly indicated ; and where words are equivocal, that meaning should be adopted which tends to pro- mote consistency in preference to one which would promote in- consistency, and, if possible, some effect should be given to each distinct provision of the will, rather than that it should be ani- hilated. The court should give effect to all the words of the will and not violate the general intent. "- Children and their issue should not be disinherited on any doubtful construction.-^ All the papers constituting the testamentary act are to be con- sidered ; and the technical meaning of words is to be followed only where it reaches the intent. While the intention of the testator must be the pole star in ^ Where a testator says in express upheld. A will will not be so con- terms that he gives, bequeaths or de- strued as to create a partial intestacy vises property, real or personal, with- unless the language used compels such out limiting the interest or title, or a construction. The presumption is making any other disposition of, ot that when one forms an intention to reference to it, his intention evidently make a will he intends to dispose of was to give the person named as donee all his estate. Mills v. Franklin, 128 or devisee the same right and title to Ind. 444, 28 N. E. 60. the property as he himself held, and ^ Aspy v. Lewis, 152 Ind. 493, 52 N. that intention must be respected and E. 756. § 504 CONSTRUCTION OF WILLS. 88 1 seeking his meaning in his will, yet in the ascertainment of such intention courts are to be guided by certain rules of construction that have become as thoroughly settled as that which requires that the intention should be the true guide.-* In seeking the intention courts will presume in the absence of any language in the will repelling such presumption, that the words and expressions used by the testator were employed in the light of the settled meaning which the law attaches to such words and expressions.-^ And technical words will be given their legal effect unless, from subsequent inconsistent words, it is very clear that the testator meant otherwise, and the law will even supply words where to do so does not oppose the manifest intention of the testator.^^ Technical rules of construction will also be made to give way to the manifest intention of the testator, where such intention can be enforced without contravening the well established rules of law." § 504. Rules as to repugnancy. — The following rules in reference to repugnancy in wills are fully established : 1. Directing a legacy to be made a charge on land is not re- pugnant to a subsequent direction for the sale of the same land ; but a devise in fee with a provision never to sell is repugnant. 2. No portion of a will is to be rejected for repugnancy, ex- cept from necessity; but ever\^ portion will be upheld, if possible; and to effect this, the order of the bequests will be reversed.'^ =* Fowler V. Duhme, 143 Ind. .248, 42 Crawfordsville Trust Co., 45 Ind. N. E. 623 ; Aneshaensel v. Twyman, App. 64, 88 N. E. 865. 42 Ind. App. 354, 85 X. E. 788. -'' Where two clauses of a will create ■' Taylor v. Stephens, 165 Ind. 200, an estate in the several devises named, 74 N. E. 980; Fowler v. Duhme, 143 and they are not united grammatically Ind. 248, 42 N. E. 623 ; Clore v. Smith, or by the expression of a common 45 Ind. App. 340, 90 N. E. 917. purpose, each clause must be consid- ^ Fowler v. Duhme, 143 Ind. 248, 42 ered and construed separately, and N. E. 623; Coulter v. Crawfordsville without relation to the other, even Trust Co., 45 Ind. App. 64, 88 N. E. though the testator may have had the 865. same intention in regard to both. ■' Stinson v. Rountree, 168 Ind. 169, Bailey v. Sanger, 108 Ind 264, 9 N. 78 N. E. 331, 80 N. E. 149; Coulter v. E. ''59. 56 — Pro. L.wv. 882 INDIANA PROBATE LAW. ^ 5O5 3. General words are controlled by those more specitic. and words are not to be rejected for repugnancy except from neces- sity. But if there are repugnant words contravening the general sense or intent of the will, such words must be rejected. 4. In cases of irreconcilable repugnancy, the latest portion of the will must stand. Where repugnancy appears in a will evidence is admissible to show the situation of the parties, their surroundings and circum- stances, and to identify the property devised, and if, after con- sideration of such evidence, the court is unable from the face of the will, to determine the testator's intention such will must be held void.-" § 505, Rules for supplying words. — The following general rules are applicable for supplying words : 1. Words omitted may be supplied by intendment; but this is not done where there is ground for doubt in regard to the words.^" 2. Words omitted may be supplied by reference to the correl- ative part of the will. 3. The name of a devisee may be supplied by clear intend- ment. Even the name and the devise itself may be so supplied. ^^ 4. The terms of one devise cannot be drawn into the con- struction of another wholly distinct. The correspondence must amount to identity. The court will not cut down a devise in a codicil by a resort to the will. 5. When the sections of a will are numerically arranged, each section is distinct. 6. In the American courts almost any latitude of construc- tion is allowed, to meet the clear intent of the will. ''Die without issue" has been construed to mean "without issue living."' And what seems a life estate in terms may be construed a remainder in fee.^^ =^Tobin V. Tobin, 163 Ind. 240, 69 Ind. App. 356, 29 N. E. 924. 50 Am. N. E. 440; Page on Wills, §§ 48, 822. St. 276n; Holmes v. Mead, 52 N. Y. ^Butler V. Moore, 94 Ind. 359; 1 332. Redfield on Wills, p. 453. '" The word "estate" in a will may, ^^ Chappell V. Missionary Soc. &c., 3 if it is necessary to do so in order to § 5o6 CONSTRUCTION OF WILLS. 883 The cases show that words cannot be supplied unless it is clear that there has been an omission, and what that precise omission was. Words of a will may be transposed when such transposition will render the will clear without changing its natural import; and the court may reach the obvious intent of the testator by transposition. Words of local description applying to one de- vise may be referred to another, and vice versa; but no liberty of transposition or supplying of words is allowed, unless in fur- therance of the most unquestionable purpose of the testator.^^ § 506. As to extrinsic evidence. — In the interpretation and construction of the last wills of the decedent, the law requires that the intention of the testator shall be ascertained, and if possi- ble, carried into effect; but this intention must be shown in some way by the will itself, and not wholly by facts outside of the will.^* Extrinsic evidence is not admitted in any case, with a view of reforming or adding anything to the will, but for the purpose of arriving at the real intent of the testator, by identify- carry out the intention of the testator, lar signification, and will not be con- be construed to mean one species of strued to include grandchildren, when property only. It does not always there are other persons in existence, mean both real and personal property, at the date of the will or when the Goudie V. Johnston, 109 Ind. 427, 10 bequest or legacy takes effect, answer- N. E. 296; Crew v. Dixon, 129 Ind. ing to such meaning of the term. West 85, 27 N. E. 728. The words "to be v. Rassman, 135 Ind. 278, 34 N. E. 991. divided equally" apply as well to a di- "^Jackson v. Hoover, 26 Ind. 511. vision among classes as among indi- There is no division in the authorities viduals. Henry v. Thomas, 118 Ind. upon the proposition that courts can- 23, 20 N. E. 519. Where a testator, in not, except in the clearest cases, his will, provided that all his estate change by transposition, aUeration, should go to his widow, and at her subtraction or substitution, the words death or marriage his son was to have of a will, but must take them as they forty acres, and the residue of his are written. Shimer v. Mami, 99 Ind. land was to be "divided equally 190, 50 Am. Rep. 82; Rupp v. Eberly, amongst all his legal heirs," the son, 79 Pa. St. 141; Yearnshaw's Appeal, having taken forty acres, was not also 25 Wis. 21 ; Gibson v. Seymour, 102 entitled to a share of the residue as Ind. 485, 2 N. E. 305, 52 Am. Rep. 688. one of the legal heirs. Griffin v. Ulen, " Tyner v. Reese, 70 Ind. 432 ; 139 Ind. 565, 39 N. E. 254. The term Daugherty v. Rogers, 119 Ind. 254, 20 "children," when used in a will, will N. E. 779, 3 L. R. A. 847n; Pugh v. be construed in its ordinary and popu- Pugh, 105 Ind. 552, 5 N. E. 673. 884 INDIANA PROBATE LAW. §506 ing the person or thing generally described, and to remove the ambiguity resulting from the erroneous particular description.^' The following propositions on the subject of the admissibility of extrinsic evidence to aid in the construction of wills are taken from Wigram's work on Extrinsic Evidence, and are of great value and importance : I. A testator is always presumed to use the words in which he expresses himself according to their strict and primary accep- tation, unless from the context of the will it appears that he has used them in a different sense, in which case the sense in which he thus appears to use them will be the sense in which they are to be construed.^'' " Sturgis V. Work, 122 Ind. 134, 22 N. E. 996, 17 Am. St. 349 ; Daugherty V. Rogers, 119 Ind. 254, 20 X. E. 779, 3 L. R. A. 847n. jNIistakes in a will cannot be corrected by courts, except in a case where the mistake is appar- ent on the face of the will. It cannot be done by extrinsic evidence. Judy V. Gilbert, 11 Ind. 96, 40 Am. Rep. 289n ; Cruse v. Cunningham, 79 Ind. 402; Funk v. Davis. 103 Ind. 281, 2 N. E. 739; Pocock v. Redinger, 108 Iml. 573, 9 N. E. 473, 58 Am. Rep. 71n; Priest V. Lackey, 140 Ind. 399, 39 X. E. 54. Where a will itself discloses the fact that there was a mistake in drafting the instrument, or there are sufficient indications of a latent am- biguity, it is not error to allow extrin- sic evidence to be introduced for the purpose of explaining and arriving at the intention of the testator. Groves v. Culph, 132 Ind. 186, 31 N. E. 569. Ver- bal declarations of a testator are not competent evidence to show a mistake in a will, but facts and circumstances are. Daugherty v. Rogers, 119 Ind. 254, 20 N. E. 779, 3 L. R. A. 847n. Extrinsic evidence is not admissible to alter, detract from or add to the terms of a will; nor is parol evidence admissible to correct a supposed mis- take in a will. Bunnell v. Bunnell, IZ Ind. 163; Price v. .Price, 89 Ind. 90; Lamb v. Lamb. 105 Ind. 456, 5 N. E. 171; Duncan v. Wallace, 114 Ind. 169, 16 N. E. 137. " A, desiring to buy the "northeast quarter of the southeast quarter" of a certain section of land, borrowed from his wife money to pay therefor, agree- ing to devise the land to her for life, with remainder to her children ; and he made his will, intending to devise such land to her ; but by mistake the land was described in the will as the "northeast quarter of the southwest quarter" of said section, which tract the testator never owned. Held, that there was no mistake apparent on the face of the will, and that parol evi- dence was not admissible to show that the testator intended to describe a dif- ferent tract from that described in the will. Judy V. Gilbert, 11 Ind. 96, 40 Am. Rep. 289n. When the mistake is shown by the words of the will, when applied to the subject-matter upon which, as its language discloses, it was intended to operate, such mistake may § 506 CONSTRUCTION OF WILLS. 885 2. Where there Is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so interpreted are sensible with refer- ence to extrinsic circumstances, it is an inflexible rule of construc- tion that the words of the will shall be interpreted in their strict and primar}^ sense and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered. 3. Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words so interpreted are insensible with reference to ex- trinsic circumstances, a court of law may look into the extrinsic circumstances of the case to see whether the meaning of the words be sensible in any popular or secondary sense of which, with reference to these circumstances, they are capable. 4. Where the characters in which the will is written are diffi- cult to be deciphered, or the language of the will is not under- stood by the court, the evidence of persons skilled in deciphering writing, or who understand the language in which the will is writ- ten, is admissible to declare what the characters are, to inform the court of the proper meaning of the words. 5. For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property claimed as the subject of dis- position, and to the circumstances of the testator and of his fam- ily and affairs, for the purpose of enabling the court to identify be obviated by contrnction. Priest v. Spilman, 25 Ind. 95 ; Black v. Rich- Lackey, 140 Ind. 399, 39 N. E. 54; Po- ards, 95 Ind. 184; Rook v. Wilson, cock V. Redinger, 108 Ind. 573, 9 X. E. 142 Ind. 24, 41 N. E. 311, 51 Am. St. 473, 58 Am. Rep. 71n; Cleveland v. 163. 886 INDIANA PROBATE LAW. 506 the person or thing intended by the testator, or to determine the quantity of interest he has given by his will." 6. Where the words of the will, aided by evidence of the ma- terial facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended, and the will will be void for uncertainty.^'* 7. Notwithstanding the above rule of law which makes a will void for uncertainty, courts of law in certain special cases admit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insufficient for the purpose."" ^' Hartwig v. Schiefcr, 147 Ind. 64, 46 N. E. 75; Skinner v. Harrison Tp., 116 Ind. 139, 18 N. E. 529, 2 L. R. A. 137; Elliott v. Elliott, 117 Ind. 380, 20 N. E. 264, 10 Am. St. 54. Where a testatrix, a member of the Church of Christ, made a bequest to the "Chris- tian Missionary Society of this state," it was competent to show by extrinsic evidence that the Missionary Society of the Churches of Christ in Indiana was the society intended in said be- quest. Chappell V. Missionary Soc, 3 Ind. App. 356, 29 N. E. 924, 50 Am. St. 276n. ^ Where a testator devises to his two daughters a tract of land de- scribed as the "west half of the south- west quarter" of a certain section, township or range, which he never owned, owning instead the west half of the northeast quarter of the above mentioned section, township and range, the devisees will not be per- mitted to show the facts as stated as a basis for the inference that the tes- tator must have intended to dispose of the property actually owned by him, and that the description as found in the will was the result of inadvertence or mistake. Sturgis v. Work, 122 Ind. 134, 22 N. E. 996, 17 Am. St. 349. Where one item of a will devised the house and lot on which the testator resided "being parts of lots numlier 15 and 16," &c., to his wife during her natural life, and a subsequent item of the will devised "the same lot number 15 so devised to my said wife during her lifetime" to the testator's young- est daughter, and '"to her heirs in fee simple forever" there is such a mis- take apparent on the face of the will as will permit the introduction of ex- trinsic evidence to show that the testa- tor intended to devise the same prop- erty to his daughter in fee that he had in the previous item of the will de- vised to his wife for life. Groves v. Culph, 132 Ind. 186, 31 N. E. 569. ™A will contained this provision: "As to my real estate, I dispose of it as follows : I own the east half of the northwest quarter," &c., "and I here- by give and bequeath the same to my son," &c. The testator did not own the east half of the northwest quarter, but did own the west half. Held, that as the will itself showed a mistake, it would be made to operate upon the land intended to be devised. Pocock V. Redinger, 108 Ind. 573, 9 X. E. 473, 58 Am. Rep. 71n. An alleged mistake in the description of land devised can- § 507 CONSTRUCTION OF WILLS. 887 A latent ambiguity which will authorize the admission of ex- trinsic evidence is one which may arise not from the face of the will, but from facts referred to in the will which are outside the will itself.*'^ The rule is also well settled that when a latent ambiguity is disclosed by extrinsic evidence, it may be removed by extrinsic evidence. ^^ § 507. As to parol evidence. — But parol or other outside evidence is not admissible to alter, detract from or add to the terms of a will, nor to correct supposed mistakes therein. A court may correct a mistake which is apparent upon the face of the will itself ; further than this it cannot go. It is the duty of the courts to construe and enforce wills as they are written; any effort to reform or correct mistakes therein upon outside evidence would practically destroy the will of the testator and supply the court's construction thereof in its stead.'*" In some cases parol or other extrinsic evidence may be re- sorted to, to prove the intention of the testator by showing the not be corrected by the admission of presumption that the testator intended extrinsic evidence, unless the language to devise his own real estate and not of the will itself furnishes the basis that of another, the court, in Pate v. of the correction ; and where, in vio- Bushong, 161 Ind. 533, 69 N. E. 291, lation of this rule a judgment is ren- 100 Am. St. 287, 63 L. R. A. 593, dered so correcting a description in a held the description sufficient to pass will, a complaint to review will lie. title to the real estate actually owned Funk V. Davis, 103 Ind. 281, 2 X. E. by the testator, and on this point over- 739. ruling the cases of Judy v. Gilbert, 11 '" Daugherty V. Rogers, 119 Ind. 254, Ind. 96, 40 Am. Rep. 289n; Funk v. 20 X. E. 779, 3 L. R. A. 847n ; Priest Davis, 103 Ind. 281, 2 N. E. 739 ; Stur- v. Lackey, 140 Ind. 399, 39 N. E. 54; gis v. Work, 122 Ind. 134, 22 N. E. Groves v. Culph, 132 Ind. 186, 31 N. E. 996, 17 Am. St. 349. 569. *- Bunnell v. Bunnell, 12> Ind. 163; "Pate v. Bushong, 161 Ind. 533, 69 McAllister v. Butterfield, 31 Ind. 25; N. E. 291, 100 Am. St. 287, 63 L. R. Rapp v. Reehling, 124 Ind. 36, 23 N. A. 593; Whiteman v. Whiteman, 152 E. Ill, 7 L. R. A. 498; Judy v. Gilbert, Ind. 263. 53 X. E. 225 ; Patch v. White, 11 Ind. 96, 40 Am. Rep. 289n ; Funk v. 117 U. S. 210, 29 L. ed. 860, 6 Sup. Ct. Davis, 103 Ind. 281, 2 X. E. 739; Sim- 617, 710. By holding that extrinsic evi- mons v. Beazel, 125 Ind. 362, 25 N. E. dence was admissible to remove an 344; Judy v. Williams, 2 Ind. 449; ambiguity in the particular description Grimes v. Harmon, 35 Ind. 198, 9 Am. of land in a will, and by following the Rep. 690; Sturgis v. Work, 122 Ind. 888 INDIANA PROBATE LAW. § 507 meaning of the language used and the subject to which it alludes, and for the purpose of determining the object of the testator's bounty, the subject of disposition, or the quantity of interest in- tended to be given by the will.^^ Parol evidence is not admissible to explain a will that is free from ambiguity/* Parol evidence is admissible in order to place the court in the position of the testator, but not to render any extrinsic fact part of the will. Such evidence cannot supply any defect, or accident, or omission, but it may be shown that part of the instrument is not the testator's will/" The following are instances in which parol evidence is not ad- missible in construing wills : 1. Filling up a total blank in a will. 2. Inserting a devise omitted by mistake. 3. Proving what was intended by an unintelligible word. 4. Providing that a thing in substance different from that de- scribed in the will was intended. 5. Changing the person described. 6. Reconciling conflicting clauses in a will. 7. Proving to which of two antecedents a given relative was intended to refer. 8. Explaining or altering the estate. 9. Proving which of several testamentary guardians was in- tended to have the actual care of the children. 10. Proving what was to be done with the interest of a legacy until time of payment. 11. Proving that by a bequest of the residue a particular sum was intended. 134, 22 N. E. 996, 17 Am. St. 349 Waters v. Bishop, 122 Ind. 516, 24 N E. 161. *^ Cruse V. Cunningham, 79 Ind. 402 Grimes v. Harmon, 35 Ind. 198, 9 Am Rep. 690; Jackson v. Hoover, 26 Ind 511; Wigram on Wills, p. 51; Jenkins Ind. 163 V. Compton, 123 Ind. 117, 23 X. E. 1091. "Frain v. Alillison, 59 Ind. 123; Rapp V. Reehling, 124 Ind. 36, 23 N. E. m, 7 L. R. A. 498. *^McAlister v. Butterfield, 31 Ind. 25 ; Grimes v. Harmon, 35 Ind. 198, 9 Am. Rep. 690; Bunnell v. Bunnell, 11 50/ CONSTRUCTION OF WILLS. 889 12. Construing a will with reference to the instructions given for preparing it. 13. Proving that an executor was to be a trustee of the resi- due for the next of kin. 14. Proving that an executor was intended to take beneficially where, on the face of the will, it was conclusively apparent that he was intended to be a trustee. 15. Controlling a technical rule of verbal construction. 16. Explaining the sense in which the word "relations" was intended to be used. 17. What a testator intended to give by the word "plate." 18. What a testator intended to devise by the words "lands out of settlement." 19. Proving that a portion was intended to be a satisfaction of a bequest of the residue. 20. That a legacy in a codicil was intended to be a substitu- tion for a legacy in the will. 21. Proving that a devise to a wife was intended to be in bar of dower. 22. Supplying a use or trust. 23. Ascertaining whether the real estate was charged with the payment of debts in aid only or in exoneration of the personal estate. 24. That the intention in appointing a debtor to be executor was a release of the debt. 25. Rebutting a presumption which arises from the construc- tion of words simply qua words. 26. Raising a presumption. 27. Increasing a legacy. 28. Increasing that which is defective. 29. Adding a legacy to a will. 30. Proving what interest a legatee was intended to take in a legacy. 31. Ascertaining an intention which, on the face of the will, was indeterminate. 890 INDIANA PKOUATE LAW. § 508 1,2. Proving that words of limitation were intended to be con- strued as words of purchase. ^^. Proving that executors, who had acted in part and tlien renounced, were intended by the testator to act only to that ex- tent to which they acted. 34. Proving that the testator meant to use general words in this or that particular sense. Parol evidence is always admissible to show fraud, deception, or undue influence in obtaining a will, and cases allow a very ex- tensive range of testimony in support of, and in reply to, evidence tending to show fraud, undue influence and weakness of mind as the moving and proximate causes of a will. It is said that parol evidence cannot be admitted to supply or contradict, enlarge or vary the words of a will, nor to explain the intention of the testator, except in two specified cases : i. Where there is a latent ambiguity arising dehors the will as to the person or subject meant to be described ; 2. To rebut a resulting trust, and all the cases will be found to profess to proceed on one or the other of these grounds.''" .^ 508. Miscellaneous rules. — W here a will makes a dispo- sition of all of a testator's estate, real and personal, except the fee to the real estate, such fee is cast upon the testator's heirs as in case of his intestacy, and is governed by the statute regulating descents.*^ Clauses in a will whicli are entirely independent of each other must be considered and construed separately and without rela- tion to each other, even though it may seem that the testator had the same intention in regard to them."*® "Marvin v. Marvin, 1 Johns. Ch. (N. *" Bailey v. Sanger, 108 Ind. 264, 9 Y.) 231; AIcAIister v. BuUerheld, 31 N. E. 159; 3 Jarman on Wills, p. 708. Ind. 25; Hartwig v. Schiezer, 147 Ind. Where one clause of a will gives an 64, 46 X. E. 75 ; Pate v. Bushong, 161 estate in clear and decisive terms, Ind. 533, 69 N. E. 291, 100 Am. St. 287, such estate cannot be taken away or 63 L. R. A. 593 ; Tobin v. Tobin, 163 cut down by any subsequent words Ind. 240, 69 N. E. 440. that are not as clear and decisive as " Thomas v. Thomas, 108 Ind. 576, those giving it. Bailey v. Sanger, 108 9 N. E. 457; Parks v. Kimes, 100 Ind. Ind. 2M, 9 N. E. 159; Hochstedler v. 148. Hochstedler, 108 Ind. 506, 9 N. E. 5o8 CONSTRUCTION OF Vv'ILLS. 891 A will executed on Sunday is valid, and does not come within the prohibition making it a penal offense to engage in common labor, or in one's usual avocation on that day.^^ Where an estate is given in one clause in clear and decisive terms it cannot be taken away or cut down by any subsequent clause that is not as clear and decisive as the one in which the estate is given. ^"^ It is also a rule that where an estate is given to two, if the part ^iven to one fail for any cause, that part, without a fresh disposi- tion of it, will not go to increase the part given the other, but will fall into the residue, or go to the next of kin.^' It is said that, ''any construction of a will which will result in a partial intestacy, is to be avoided unless the language of the will compels it ; for the very fact of making a will is strong evi- dence of the testator's purpose to dispose of his whole estate."-" 467 ; Goudie v. Johnston, 109 Ind. 427, 10 N. E. 296; O'Boyle v. Thomas, 116 Ind 243, 19 X. E. 112; Bruce v. Bis- sell, 119 Ind. 525, 22 N. E. 4, 12 Am. St. 436; Siurgis v. Work, 122 Ind. 134, 22 X E 996, 17 Am. St. 349 ; Ross v. Ross, 135 Ind. 367, 35 X. E. 9. In the construction of a clause of a will the court will look to the whole in- strument, if, by so doing, any light will be thrown upon the particular clause in dispute or to be construed. Kilgore V. Kilgore, 127 Ind. 276, 26 X. E. 56. ^'Rapp V. Reehling, 124 Ind. 36, 23 N. E. Ill, 1 L. R. A. 498. " Sturgis V. Work, 122 Ind. 134, 22 X. E. 996, 17 Am. St. 349; Simmons V. Beazel,'l25 Ind. 362, 25 N. E. 344; Bruce v. Bissell, 119 Ind. 525, 22 X. E. 4, 12 Am. St. 436; Bailey v. Sanger, 108 Ind. 264, 19 X. E. 159. Where the same clause of a will operates on both real and personal property, if the be- quest of real estate vests, the same construction will be applied to the personal estate. Heilman v. Heilman, 129 Ind. 59, 28 X. E. 310. The law favors the vesting of estates and will construe the terms of a will as creat- ing a vested estate, if possible. Da- vidson V. Koehler, 76 Ind. 398 ; Harris V. Carpenter, 109 Ind. 540, 10 X. E. 422; Davidson v. Bates, 111 Ind. 391, 12 X. E. 687; Amos v. Amos, 117 Ind. 11, 19 X. E. 543; Bruce v. Bissell, 119 Ind. 525, 22 X. E. 4, 12 Am. St. 436; Heilman v. Heilman, 129 Ind. 59, 28 X. E. 310; Crew v. Dixon, 129 Ind. 85, 27 X. E. 728. " Sturgis V. Work, 122 Ind. 134, 22 X. E. 996, 17 Am. St. 349; 2 Jarman on Wills, p. 368. "2 Redfield on Wills, 442; Cate v. Cranor, 30 Ind. 292; Spurgeon v. Scheible, 43 Ind. 216; Roy v. Rowe, 90 Ind. 54. Where a testator disposes of real estate, and thereafter conveys it, the provisions of the will relating thereto are rendered inoperative. Sim- mons V. Beazel, 125 Ind. 362, 25 X. E. 344. A will that devises to one per- son all the land of which he or she may die possessed, cannot be defeated 892 INDIANA PROBATE LAW. S5 08 When a person makes a will the presumption is that he intends to dispose of all his property, unless it is rebutted by the terms of the will or other evidence to the contrary." Where a testator, in devising his real estate, has identified and designated it in the will by a general description, and makes a mistake in attempting to specifically describe it, such mistake may be corrected and made to operate upon the land intended to be specifically described. The testator's attempt at a specific descrip- tion of the land does not render nugatory the general descrip- tion.*^' Codicils are to be construed in connection with the wills, and when there is a conflict the codicil will control." If a will makes reference to any other instrument, such instru- ment may be examined to assist in arriving at the intention of the testator."" A will must be construed according to the law in force at the because of an error in the subsequent description of the land. Priest v. Lackey, 140 Ind. 399, 39 N. E. 54; Skinner v. Spann, — Ind. — , 95 N. E. 243. "Tobin V. Tobin, 163 Ind. 240, 69 N. E. 440; Pate v. Bushong. 161 Ind 533, 69 N. E. 291, 100 Am. St. 2B7, 63 L. R. A. 593; Korf v. Gerichs, 145 Ind. 134, 44 N. E. 24. " Cleveland v. Spilman, 25 Ind. 95 ; Black V. Richards, 95 Ind. 184; Po- cock V. Redinger, 108 Ind. 573, 9 N. E. 473, 58 Am. Rep. 7ln; Dunning v. Vandusen, 47 Ind. 423. In an action to recover real estate claimed under a devise by the description, "Part of the donation lot number 158, in township number 3 north, of range number 8 west, containing two hundred acres," parol evidence was admissible to iden- tify the land sued for with the land devised, and to show that the testator died seized of it and of no other part of donation lot number 158. Such de- vise was not void for uncertainty of description of the land. Cruse v. Cunningham, 79 Ind. 402. K will, at- tempting to devise real estate, de- scribed it as follows : "The west half of the southwest fr. section (19) nine- teen, township (22), range (1 W.), contain (72) seventy-two and (40) hundredth's acres," but it did not name the state or county, or state whether the township was "north" or "south." Held, that, under the mod- ern rule that the thing devised may be identified by parol evidence, the will was not void for mere uncertain- ty of description. Black v. Richards, 95 Ind. 184; Rook v. Wilson, 142 Ind. 24, 41 N. E. 311, 51 Am. St. 163. " Pate V. French, 122 Ind. 10, 23 N. E. 673; Sturgis v. Work, 122 Ind. 134, 22 N. E. 9%, 17 Am. St. 349. " Fesler v. Simpson, 58 Ind. 83. I ,QQ CONSTRUCTION OF WILLS. 893 death of the testator." And where the Supreme Court has once given a construction to a will such construction becomes the law of the case and governs in all future proceedmgs ;^ person cannot be allowed at the same time to benefit by and repudiate a will. If he chooses to take the benefit which it con- fers he must likewise accept the obligation which it imposes; no person can accept and reject the same instrument." Courts do not assume to make a will for a testator. They on y seek for his meaning and intention in the language of the will. And the intention to be carried into effect by a judical mteiTreta- tion or construction of a will is not what existed m the nimd of a testator when it was executed, but that which ,s embodied m the laneuaee of the will itself."" . , .• WiuLpLk from the death of the testator, and that ,s he time at which they become effective, and all expressions used in the will in reference to the disposition^of the property must be con- strued with reference to that fact."' S 509. Rule as to personal property.-The books make dis- tiiutions between the rules of construction of wil s relating to personal property, and those relating alone to real estate. Bu ft has been doubted whether such rules of distinction longer x. in this state, where the paramount *i-*;" <='"f ^^'I'T a as nearly as possible at the intention of the '^^'aton It -^ said in one case that: "It is certain, we think, *-*«;- °^ thus given for the supposed distinction has long «^^^d 'o e.xis , if it ^ver existed in this state. Here the testator s will of per- sonal estate must be executed with precisely the same solemnity .Ken, V. St;„so„, 8 BlacUf. (I„d.) ^^^^^ ^-^t:%^1s '''.Brown v. Cri.chell, UO Ind. 31, 7 L. R. A- ^f ■ D-f';;^ ^ ^"i'^ V -F QQQ 11 K E 486- Watt v. Pitt- 119 Ind. 254, 20 N. E. 779, ^ i^- i^-^^ ■f,- TH 168 25 N E 191- 847n; Engelthaler V. Engelthaler, 196 sZH'::s"^e„'s%td^4.f;p.c; .. m «3^^/, -•---;•■ " T ' \T^^ '"'■ '"'• ""' ""^^^ ^- «="-"• '« '"'■ ''' man Estoppel, S 467. ^ -Lee V. Lee, 45 Ind. App. 645, 91 28 N. E. olO. 894 INDIANA PROBATE LAW. § 509 and formality as the will devising real estate; and tliere is no perceptible or practical difference in the operation of a will upon personal estate and upon real estate.""^ While the word devise is the appropriate term in a will to pass real estate, and bequeath the term applicable to gifts of personal property, yet a strict adherence to technical words is not neces- sary to give effect to any species of disposition ; and where the testator's intention is plain it will be carried out regardless of the legal operation of technical vvords."^ The word "estate" does not necessarily include both species of property, but may be construed to mean either personal or real estate. "° It is the rule as to wills disposing of personal estate, that all lapsed and void legacies will pass under the residuary clause of such wills."" In this respect the old rule of distinction between lapsed or void bequests of personal property and lapsed or void devises of real estate has been abolished, and both species of property will now pass alike into the residuum, and to the resi- duary legatee, or his descendants, to the exclusion of the heirs. "^ In bequests of personal property it is not necessary to use words of inheritance to give an absolute title. "^ And both real •'' Holbrook v. iMcCleary, 79 Ind. 167. "' Beach, Wills, 4; Lasher v. Lasher, In this case the court says: "It is 13 Barb. (N. Y.) 106; Borgner v. said, however, that there exists an ini- Brown, 133 Ind. 391, 33 X. E. 92. portant distinction between a void or '"Crew v. Dixon, 129 Ind. 85, 27 N. lapsed bequest of personal estate and E. 728; Goudie v. Johnston, 109 Ind. a void or lapsed devise of real estate, 427, 10 N. E. 296; Giles v. Little, 104 which obtains both in England and U. S. 291, 26 L. ed. 745; Green v. America, in this, that the former falls Hewitt, 97 111. 113, 37 -Am. Rep. 102. into the residuum and the latter goes ""Gray v. Bailey, 42 Ind. 349; Hol- to the heir. 2 Redf. on Wills, p. 117. brook v. McCleary, 79 Ind. 167; The reason generally assigned for Greene v. Dennis, 6 Conn. 292 ; James such distinction has been the different v. James, 4 Paige (N. Y.) 115. operation of a will upon personal and "' Holbrook v. McCleary, 79 Ind. real estate. It is said, that, as to per- 167 ; Prescott v. Prescott, 7 Met. sonal estate, the w-ill would operate (Mass.) 141 ; Thayer v. Wellington, 9 upon all the personal estate held by Allen (Mass.) 283, 85 Am. Dec. 753n. the testator at the time of his death; "^ Chism v. Respass, 1 T. B. Mon. while, as to his real estate, the testa- (Ky.) 25; Boyd v. Strahan, 36 111. tor could only devise such as he owned 355 ; Mulvane v. Rude, 146 Ind. 476, 45 at the time of making his w-ill." N. E. 659. § 5IO CONSTRUCTION OF WILLS. 895 and personal property may be disposed of in the same connection and in the same words. ^'^ § 510. As to precatory words. — Precatory words are such words of desire, request, recommendation, entreaty, or expecta- tion which, when addressed by a testator to his legatee or devisee in connection with a testamentary gift, will raise a trust in the donee in favor of an ulterior beneficiary. The language em- ployed must clearly indicate on the part of the testator a purpose beyond the direct gift. That is, whether the words used are meant to govern the conduct of the party to whom they are ad- dressed, or whether they are a mere indication of that which the testator thinks would be a reasonable exercise of the discretion of the party, leaving him to exercise such discretion.^" In an English case the chancellor says : 'T conceive the rule of construction to be that words accompanying a gift or bequest expressive of confidence or belief or desire or hope that a par- ticular application will be made of such bequest will be deemed to import a trust upon these conditions ; ( i ) that they are so used as to exclude all option or discretion in the party who is to act as to his acting according to them or not; (2) the subject must be certain; (3) the objects expressed must not be too vague or indefinite to be enforced. "^^ In an American case it is said to be the "settled doctrine of courts of chancer\' that a devise or bequest to one person, accom- panied by words expressing a wish, entreaty, or recommendation that he will apply it to the benefit of others, may be held to create a trust, if the subject and the objects are sufficiently certain. Some of the earlier English decisions had a tendency to give to this doctrine the weight of an arbitrarv' rule of construction. But by the later cases in this, as in all other questions of the in- terpretation of wills, the intention of the testator, as gathered from the whole will, controls the court. In order to create a trust, it must appear that the words were intended by the testator ** Johnson v. Johnson, 1 Munf. '* Woerner Am. Law. Admin., § 415. (Va.) 549; Mulvane v. Rude, 146 Ind. ■" Briggs v. Penny, 3 Macn. & G., 476, 45 N. E. 659. 546. 896 INDIANA PROBATE LAW. § 510 to be imperative; and when property is given absolutely and without restriction a trust is not lightly to be imposed, uix)n mere words of recommendation and confidence."'" While mere precatory words may be sufficient to create a trust when used by the testator in such connection that an intention to create a trust can be clearly inferred from the entire will, yet the current of decisions of late years acts against this doctrine of converting the devisee or legatee into a trustee, and the courts will not imply a trust unless it appears from the will that such was the intention of the testator.'^ "Hess V. Singler, 114 Mass. 56; Colton V. Colton, 127 U. S. 300, 32 .L. ed. 138, 8 Sup. Ct. 1164. In this case the court says : "As to the doctrine of precatory trusts, it is quite unneces- sary to trace its origin, or review the numerous judicial decisions in Eng- land and in this country wiiich record its various applications. If there be a trust sufficiently expressed and ca- pable of enforcement by a court of equity, it does not disparage, much less defeat it, to call it 'precatory.' The question of its existence, after all, depends upon the intention of the testator as expressed by the words he has used, according to their natural meaning, modified only by the context and the situation and circumstances of the testator when he used them. On the one hand, the words may be merely those of suggestion, counsel, or advice, intended only to influence, and not to take away the discretion of the legatee growing out of his right to use and dispose of the property given as his own. On the other hand, the language employed may be imper- ative in fact, though not in form, con- veying the intention of the testator in terms equivalent to a command, and leaving to the legatee no discretion to defeat his wishes, although there may be a discretion to accomplish them by a choice of methods, or even to define and limit the extent of the interest conferred upon his beneficiary." '' Elliott v. Elliott, 117 Ind. 380, 20 X. E. 264, 10 Am. St. 54; Anderson v. Crist, 113 Ind. 65, 15 N. E. 9; Van Gorder v. Smith, 99 Ind. 404; Mitchell V. Mitchell, 140 Ind. 113, 42 N. E. 4o5. In this last case the court says: "The conflict of opinion as to the effect of words of this character is almost be- wildering. Confusion has arisen from the idea that 'the wish of a testator, like the request of a sovereign, is equivalent to a command,' regardless of other rules of construction and of other expressions of the testator in positive conflict with the notion of a command. In the recent case of Orth v. Orth, 145 Ind. 184, 42 N. E. 277, 44 N. E. 17, 57 Am. St. 185, 32 L. R. A. 298, we cited many cases where ex- pressions of hope, confidence, entreaty, wish and request were held not to create a trust. In addition to the au- thorities there cited, we quote from Beach on Wills, p. 404, the doctrine of precatory trusts as we understand and approve it. 'Precatory trusts have not been invariably regarded with favor in England, and in recent cases a dis- position has been evinced to qualify the rule or apply it with caution ; also among the American states, the courts 511 CONSTRUCTION OF WILLS. 897 § 511. Declarations of the testator. — A testator's declara- tions are not admissible to affect the construction of a will. They are admissible on questions of fraud and undue influence. They are admissible to show the state of the testator's mind. In one case it is said, "Verbal declarations of a testator are not competent evidence to prove a mistake in a will, but evidence of facts and circumstances is. It is proper to show the situation and condition of the testator's property, but it is not proper to prove what he said, for when the instrument is written that is deemed the expression of the testator's intention, and there the exploration for his intention must be made."^'* Declarations made in connection with the execution of the will are not admissible for the purpose of showing undue influence in its execution.'^ But declarations of the testator made before the execution of the will are admissible to show his intentions as of South Carolina, New Jersey, New York, and Connecticut, appear dis- posed to construe the doctrine with strictness; while in Pennsylvania the English rule has been declared to form no part of the common law of that state, precatory words being con- strued by its courts to amount to a declaration of a trust, only when it ap- pears from other parts of the will that the testator intended not to commit the ultimate disposal of the estate to the kindness, justice, or discretion of the devisee or legatee. And in other states the judges show a decided lean- ing against the doctrine. Although the modern tendency is very decidedly toward a restriction of this doctrine, when cases arise in which both the subject and the object of the trust are clearly defined in the precatory words or clauses, the court will consider it evidence of an intention to create a trust.' Many authorities are there cited in support of the text." It is an error to suppose that the word "re- quest" necessarily imports an option to refuse, and excludes the idea of obedience as corresponding duty. If a testator requests his executor to pay a given sum to a particular person, the legacy would be complete and re- coverable, according to its context and manifest use, an expression of desire or wish will often be equiva- lent to a positive direction, where that is the evident purpose and meaning of the testator; as where a testator de- sired that all of his just debts, and those of a firm for which he was not liable, should be paid as soon as con- venient after his decease, it was con- strued to operate as a legacy in favor of the creditors of the latter. Burt v. Herron, 66 Pa. St. 400. " Pocock V. Redinger, 108 Ind. 573, 9 N. E. 473, 58 Am. Rep. 7 In. " Hayes v. West, Z1 Ind. 21 ; Todd V. Fenton, 66 Ind. 25; Van Valken- berg V. Van Valkenberg, 90 Ind. 433 ; Conway v. Vizzard, 122 Ind. 266, 23 N. E. 771 ; Goodbar v. Lidikey, 136 Ind. 1, 35 N. E. 691, 43 Am. St. 296. 57 — Pro. Law. 898 INDIANA PROBATE LAW. § 51- to the disposition of his property, by way of rebuttal of proof of undue influence. '" § 512. Terms descriptive of classes. — The word "chil- dren," when used in a will, does not denote grandchildren; tlie word must be understood in its primary or simple sense where there are any of such class in existence at the date of the will or the taking effect of the bequest or legacy. An eminent text-writer says: "The word 'children,' as well as all other similar descriptive terms of classes or relations, it will be borne in mind, must always be understood in wills, in its primary and simple signification, where that can be done; in short, where there are any persons in existence at the date of the will, or before the devise or legacy takes effect, answering the meaning of the term. And where the term 'children' has re- ceived a larger and more extended construction, as synonymous with issue, it has generally been based upon something in tlie will unless it resulted, as already intimated, from the fact that there were no children in existence."" "Bundy v. McKnight. 48 Ind. 502; the will, are admitted by way of re- Lamb V. Lamb, 105 Ind. 456, 5 N. E. buttal, to show his intentions as to the 171 ; Goodbar v. Lidikey, 136 Ind. 1, disposition of his property. Where 35 N. E. 691. 43 Am. St. 296; Roberts the will is made in conformity with V. Trawick, 17 Ala. 55. 52 Am. Dec. the repeated declarations of the testa- 164n ; Gardner v. Frieze, 16 R. I. 640, tor, it is more likely to have been ex- 19 Atl. 113; McCray v. Lipp, 35 Ind. ecuted without undue influence than 116. In Goodbar v. Lidikey, 136 Ind. if found contrary to such declara- 1, 35 N. E. 691, 43 Am. St. 296, the tions." court sums up as follows : "It is well " Redfield on Wills, p. 15; Cum- settled that the mere declarations of a mings v. Plummer. 94 Ind. 403, 48 testator, not made in connection with Am. Rep. 167; Pugh v. Pugh, 105 the execution of the will, are not ad- Ind. 552, 5 N. E. 673. In Jarman on missible for the purpose of showing Wills, Vol. II, p. 690, it is said : "The that the will was procured by undue legal construction of the word chil- influence. dren accords with its popular signifi- But it is quite otherwise when cation; namely, as designating the im- a will is to be defended against mediate offspring; for, in all the cases an assault by one who claims that it in which it has been extended to a was executed through undue influence, wider range of objects, it was used In such case, the declarations of the synonymously with a word of larger testator, made before the execution of import, as issue. It has been asserted. §512 CONSTRUCTION OF WILLS. 899 But this larger and more extended meaning of the term, when used as descriptive of persons to take under a will, is only al- lowed, first, from necessity, where the will would otherwise be inoperative; and second, where the testator has shown by other words that he did not use the word in its ordinary and proper meaning, but in its more extended sense. ''^ Where a bequest is made to a class, the rule is that the bequest will include all in existence at the death of the testator, unless it appears from the will that it was intended to have a limited ap- plication. It is also a general rule that all who are embraced in the class at the time the bequest takes effect will be allowed to share in it, and it is immaterial, whether all are in existence at the death of the testator or are born into the class after that time, provided they are born before the time of distribution.^^ A testator devised his estate to his son, and provided that if he should die without a lawful heir or heirs, the estate should go to the children of the testator's daughter. It was held that the word, "heir," or "heirs," was used in the limited sense of the child or heir of his body at the time of the death of the son.®" Unless a different intention is manifest from the will the however, that a gift to children ex- "" Goodwin v. Goodwin, 48 Ind. 584; tends to grandchildren, where there is Eisman v. Poindexter, 52 Ind. 401. no child." In Churchill v. Churchill, Gifts to children apply only to those 2 Met. (Ky.) 466, the court says: who correspond with the description "The technical legal import of the at the period of distribution. There- word children accords with its ordi- fore, immediate gifts extend only to nary and popular signification. It those who claim to be beneficiaries at does not denote grandchildren; and the testator's death. But deferred though sometimes used with that pur- gifts will be applied in favor of all, or pose and effect, there is no warrant their representatives, who correspond for thus enlarging its meaning in con- with the description any time after the struing a will, unless indispensably testator's death, and before the period necessary to effectuate the obvious in- of distribution. O'Hara, Const. Wills, tent of the testator." 289. "Churchill v. Churchill, 2 Met. *" Jones v. Miller, 13 Ind. 337; Smith (Ky.) 466; Collins v. Hoxie, 9 Paige v. Hunter, 23 Ind. 580; Pate v. (N. Y.) 81 ; Gable's Appeal, 40 Pa. St. French, 122 Ind. 10, 23 N. E. 673; Es- 231; Osgood v. Lovering, 33 Me. 464; sick v. Caple, 131 Ind. 207, 30 N. E. Thomson v. Ludington, 104 Mass. 193 ; 900. Low V. Harmony, 72 N. Y. 408; Feit V. Vanatta, 21 N. J. Eq. 84. 900 INDIANA PROBATE LAW. §513 word ''cliildren" properly includes only the immediate descend- ants of the person named and does not, as a rule, apply to grand- children or issue generally.*^ A gift to a class which is postponed to the expiration of a period intervening after the testator's death must be shared by all who constitute the class at the expiration of the intervening estate, including children born after the testator's death. '''- § 513. Disinheritance of heirs. — As the right to dispose of property by will is an inherent one, any person who is competent to make a will can, as a rule, make such disposition of his prop- erty as he pleases, and may even disinherit his children, and his motives in so doing cannot be questioned. ^^ But in giving a constmction to a will it should always be kept in mind that equality in the disposition of estates is favored in law, and that heirs at law will not be disinherited, only by ex- press words or necessary implication and not solely by con- jecture.*** The law is clear that the course of the descent of an estate to the heirs at law can only be interrupted by ^ devise to some other person, whatever may have been the intention of the testator, and such devisee must be named. ^^ Where one construction of an ambiguous will leads to a dis- inheritance of the heir, while another construction is in its results favorable to him, the latter construction must be adopted. ®® *^ Pugh V. Pugh, 105 Ind. 552, 5 N. onlj' be disinherited by express devise E. 673; Cuinmings v. Plummer, 94 or necessary implication, and that im- Ind. 403, 48 Am. Rep. 167. plication has been defined to be such *^ Walker v. Johnston, 70 N. Car. a strong probability, that an intention 576; Webster v. Welton, 53 Conn, to the contrary cannot be supposed." 183, 1 Atl. 633; Demill v. Reid, 71 Md. 1 Jar. Wills, 465; Rupp v. Eberly, 79 175, 17 Atl. 1014. Pa. St. 141. ^ Addington v. Wilson, 5 Ind. 137, ^ Doe v. Lanius, 3 Ind. 441, 56 Am. 61 Am. Dec. 81; Rabb v. Graham, 43 Dec. 518n; IMcIntire v. Cross, 3 Ind. Ind. 1. 444. ^Crew V. Dixon, 129 Ind. 85, 27 N. ^Jenkins v. Compton, 123 Ind. 117, E. 728. The general rule upon this 23 N. E. 1091 ; Wood v. Robertson, subject is thus stated: "It is a well- 113 Ind. 323, 15 N. E. 457; Crew v. known maxim, that an heir at law can Dixon, 129 Ind. 85, 27 N. E. 728. §514 CONSTRUCTION OF WILLS. 9OI And while it is true that a person may disinherit his kindred and give his property to whom he sees fit, yet such a disposition of it being unusual, the jury may rightfully examine into the reasonableness of such a disposition as affecting the unsoundness of mind of the testator, or the exercise of an undue influence over it, and with this in view may look into the situation, con- nections and property of a testator.^^ The fact that a mother disinherits her only child, and that he is needy, with a young family on his hands, are circumstances which a juiy may well consider in determining the question of her sanity.^® Our court says: "Among the rules of construction is that which springs from our human nature, when engaged in the serious and solemn business of making a final disposition of prop- erty, and when natural affection for wife and children has the most impartial and sincerest sway. In such moments it is pre- sumed that the testator will have a just and tender regard for those dependent ones who are the natural recipients of his bounty, and whose future comfort and happiness have the promptings of his affection. Hence it is that no construction of a will is to be accepted that disinherits a child or direct descendant in favor of collateral kindred, unless the language of the will is such as to clearly indicate such intention. "^^'^ § 514. Passes the entire estate, when. — The statute itself provides that : "Every devise in terms denoting the testator's intention to devise his entire interest in all his real or personal *' Bundy v. McKjiight, 48 Ind. 502; he may bequeath more of his property Lamb v. Lamb, 105 Ind. 456, 5 N. E. to some than to others of his children, 171 ; Gurley v. Park, 135 Ind. 440, 35 and the motive for so doing cannot be N. E. 279; Clark v. Fisher, 1 Paige questioned, and the hardship of the Ch. (N. Y.) 171, 19 Am. Dec. 402. In case can have no other weight further Lamb v. Lamb, 105 Ind. 456, 5 N. E. than a circumstance, tending with 171, the court approves the following other testimony to show the insanity instruction : "A person competent to of the testator." make a will may disinherit all of his '* Gurley v. Park, 135 Ind. 440, 35 children, and bestow all of his prop- N. E. 279. erty upon strangers, or he may give ^ Aspy v. Lewis, 152 Ind. 493, 52 N. his property to one or more of his E. 756. children and disinherit the others, or 902 INDIANA PROBATE LAW. § 514 property shall be construed to pass all the estate in such prop- erty, including estates for the life of another, which he was en- titled to devise at his death. A devise or bequest to a wife, with a condition in restraint of marriage, shall stand, but the condition shall be void.""" Whatever interest may be given by the will a devisee or legatee will take such title or interest in the property devised or be- queathed as the testator had therein at the time of his death. He cannot assert any claim to an interest formerly owned by the testator at the date of the will. And until the will has been duly probated he can assert no interest whatever to the testator's estate."' A devise of "all my worldly estate" will pass title to such real estate as the testator owned at the time of his death, without any more particular description of the same."* And if afterward the testator attempts a particular description of the property, a mis- take therein is immaterial,"^ even if he describes land he did not own."* A devise or bequest dependent on some contingency passes nothing until the happening of the contingency. The rule is thus stated : "Whenever it appears that the happening of an event, or the performance of an act, was intended to operate as a condition to precede the vesting of a legacy or devise, it is ""Burns' R. S. 1908, § 3123. Dun- American, seem generally agreed in ning V. Vanduscn, 47 Ind. 423, 17 Am. the position that an express estate for Rep. 709. In 4 Kent Com., 319, it says : life, given by will, negatives the inten- "A devise of an estate generally, or in- tion to give the absolute property and definitely, with a power of disposition converts words conferring a right of over it, carries a fee. But where the disposition into words of mere pow- estate is given for life only, the de- er." Denson v. Mitchell, 26 Ala. 360 ; visee takes only an estate for life, Skinner v. Spann, — Ind. — , 95 X. E. though a power of disposition, or to 243. appoint the fee by deed or will, be an- " Bennett v. Gaddis, 79 Ind. 347. nexed; unless there should be some ""Pettis v. Johnson, 56 Ind. 139. manifest general intent of the testa- " Priest v. Lackey, 140 Ind. 399, 39 tor, which would be defeated by ad- N. E. 54. hering to this particular intent." ** Cleveland v. Spilman, 25 Ind. 95. "The authorities, both English and 514 COXSTRUCTIOX OF WILLS. 903 essential that the event happens or the act is done, since no in- terest will previously vest in the legatee or devisee."^^ Lands may be devised to one person in fee and upon the hap- pening of a certain contingency to vest in other persons in fee simple.**" But if none of the persons in whom the fee is finally vested are in existence at the happening of the contingency the estate will vest in the heir of the testator by descent.®' Where lands devised have not been fully described in the will, the particular lands intended may be identified by parol or other extrinsic evidence.®^ The law favors vested remainders, and in cases of doubtful construction will hold a remainder vested rather than contingent ; but the intention of the testator must govern where it can be arrived at, let the result be what it may.®® '* Roper on Legacies, 750; 2 Powell on Devises, 251 ; Gibson v. Seymour, 102 Ind. 485, 2 N. E. 305, 52 Am. Rep. 688. In this case it is said: "There is no absolute devise to Mrs. Gibson, and unless the court inserts such a de- vise in the will, she cannot take the property of the testatrix. Not only is there no absolute devise, but there is a conditional one, and the contingency is the event of the survival of the hus- band of the testatrix. It is a familiar rule that the express mention of one thing implies the exclusion of all others, and under this rule it must be held that expressly making the devise depend upon the happening of a given event excludes the inference that the devise was intended to be an absolute one." ••Jones v. Miller, 13 Ind. Zi7 ; Smith V. Hunter, 23 Ind. 580. " Waters v. Bishop, 122 Ind. 516, 24 X. E. 161. Where a will limits the estate of the first taker to life, the de- visee cannot take a fee. although he may be invested with a power to ap- point those who shall take that estate. Crew V. Dixon, 129 Ind. 85, 27 N. E. 728. The children of a testator took a vested interest in the residue of his estate at the time of his death, the en- joyment of the same being postponed during the life of his wife, where the testator, after making specific devises to his children, bequeathed the rest of his property to his wife for life, and provided that after her death all his estate should be divided in equal shares among all his children, and that should any of his children be dead, and have left children, they should be entitled to the distributive share of their parents. Heilman v. Heilman, 129 Ind. 59, 28 X. E. 310. " Cruse v. Cunningham, 79 Ind. 402 ; Black V. Richards, 95 Ind. 184; Lind- sey V. Lindsey, 45 Ind. 552; Rook v. Wilson, 142 Ind. 24. 41 X. E. 311, 51 Am. St. 163. »• Stephens v. Evans, 30 Ind. 39; Bruce v. Bissell, 119 Ind. 525, 22 X. E. 4, 12 Am. St. 436. A second clause provided that the testator's son, D, shall '"have and hold" one-fourth of the testator's property "in trust (for 904 INDIANA PROBATE LAW. §514 The law not only favors the vesting of an estate, and will so construe the terms of a will, if possible, but it also presumes that words postponing the estate relate to the beginning of its en- joyment and not to the period when the estate shall vest/ Whenever a person makes a will it is presumed that he dis- iiis children now born, or which may hereafter be born), during his natural life," "with the right to use any in- come or rents of said property to aid in raising and educating said child- ren," without bond, ''but for any waste or al)use of trust [to] be re- moved, and another appointed by the court." Held, that D held and en- joyed his fourth part in trust for his children, born and to be born, for his natural life, subject to the trust and duty upon his part to appropriate so much of the rents, profits and income as was necessary for the purpose of raising and educating his children; that the remainder, in fee-simple and absolutely, vested in D's children, then in being, subject to open and let in any other children born thereafter. Kilgore v. Kilgore, 127 Iiul. 276, 26 X. E. 56. 'Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310; Amos v. Amos, 117 Ind. Z7, 19 N. E. 543 : Harris v. Carpenter, 109 Ind. 540, 10 N. E. 422; Davidson V. Koehlcr, 76 Ind. 398; Davidson v. Bates, 111 Ind. 391. 12 N. E. 687; Hoover v. Hoover, 116 Ind. 498, 19 N. E. 468; Davidson v. Hutchins, 112 Ind. 322, 13 N. E. 106 ; Doe v. Consi- dine, 6 Wall. (U. S.) 458, 18 L. ed. 869. A testator devised all his prop- erty to his wife for life, directing that at her death what remained of his es- tate, in her hands, should be equally divided among his children then living and the descendants of such as might be dead, share and share alike, taking into consideration all advancements, whether made by himself or wife. If it should be necessary in order to pay debts or to make advancements, the wife, who was named as executrix, was empowered to sell all or any part of the property, upon such terms as she should think proper. Held, that the will devised to the wife an estate for life, with a specific power of dis- position, and gave to the testator's children living at her death, and the descendants of such as were then dead, a vested remainder, and that the latter took per stirpes and not per cap- ita. Wood V. Robertson, 113 Ind. 323, 15 X. E. 457; see Jenkins v. Compton, 123 Ind. 117, 23 X. E. 1091; Crew v. Dixon, 129 Ind. 85, 27 X. E. 728. Where a bequest of personal property, without limitation to life or particular use, is made, and is accompanied by an absolute power of disposition, the first taker takes the whole interest. VanGordcr v. Smith, 99 Ind. 404; Ful- lenwider v. Watson, 113 Ind. 18, 14 N. E. 571; Tower v. Hartford, 115 Ind. 186, 17 X. E. 281. A bequest to named persons jointly of "one-fifth part of my estate, after my just debts are paid, and not otherwise disposed of, to re- main in the hands of my executor un- til they become of age," vested a pres- ent and equal interest in the legatees. Silvers v. Canary, 114 Ind. 129, 16 N. E. 166; Aspy v. Lewis, 152 Ind. 493, 52 X. E. 756. § 515 CONSTRUCTIOX OF WILLS. 905 poses of all his property subject to such disposition, and such construction will be placed upon the will where possible," § 515. Conditions in restraint of marriage. — The statute provides that "A devise or bequest to a wife, with a condition in restraint of marriage, shall stand, but the condition shall be void."^ The chief difficulty in the cases interpreting this clause of the statute has been to decide what words were words of limitation and what only words of condition. As defined, "words of limi- tation mark the period which is to determine the estate; but words of condition render the estate liable to be defeated in the intermediate time, if the event expressed in the condition arises before the determination of the estate, or completion of the period described by the limitation. The one specifies the utmost time of continuance, and the other marks some event, which, if it takes place in the course of that time, will defeat the estate.""* While they are not favorites of the law, yet there are certain kinds of conditions in restraint of alienation which will be sus- tained. In one case it is said : "As a general rule, a condition in a grant or devise that the grantee or devisee shall not alienate is void because repugnant to the estate, but a condition that the grantee or devisee shall not alienate for a particular time or to a particular person or persons is good."^ ■ Carroll v. Swift, 10 Ind. App. 170, contingent upon some event, which de- 2)1 X. E. 1061. feats the precedent estate, and who is ^Burns' R. S. 1908, § 3123. entitled to take advantage of the pro- ^4 Kent Com. 126; Corey v. Spring- hibited act or use. Conger v. Lowe, er, 138 Ind. 506, Zl N. E. 322. 124 Ind. 368. 24 N. E. 889, 9 L. R. K. ^ Langdon v. Ingram, 28 Ind. 360 ; 165n. Conditions in convej-ances, or Andrews v. Spurlin, 35 Ind. 262; devises in fee, in general restraint of Crawford v. Thompson, 91 Ind. 266, the power of alienation, are void, as 46 Am. Rep. 598; Fowler v. Maus, being contrar\- to the policy of the 141 Ind. 47, 40 N. E. 56. The law, and inconsistent with, and repug- foundation of the power to re- nant to, the estate granted. Allen v. strain alienation rests upon the Craft, 109 Ind. 476, 9 N. E. 919, 58 fact that there remains, or is vested, Am. Rep. 425 ; Fullenwider v. Watson, in some one a valid remainder or re- 113 Ind. 18, 14 X. E. 571. version, whose estate in possession is 9o6 INDIANA PROBATE LAW. §515 Where a devise or bequest is made to a wife, coupled with the condition that she shall not marry again, such devise or bequest will be sustained and the condition declared void. An estate may be limited to a wife during her widowhood; but if the testator desires to devise her a larger estate, as for life, or in fee, and makes the larger estate in any way dependent upon the condition that she shall not again marry, such condition will not cut down the estate to a less period than that to which the will limits it, but will l^e regarded as void/ An elementary writer says, upon this subject : "It has been already remarked that marriage ought to be free, and that the law does not coun- tenance such restrictions as unreasonably deter persons from forming that relation. Therefore, a devise, upon condition not to marry, or not to marry a person of such a profession or call- ing, is void, whether there be a limitation over or not."^ Conditions annexed to gifts, legacies and devises in restraint •Harmon v. Brown, 58 Ind. 207; Coon V. Bean, 69 Ind. 474; Tate v. McLain, 74 Ind. 493 ; Stilwell v. Knap- per, 69 Ind. 558, 35 Am. Rep. 240; Summit v. Yount, 109 Ind. 506, 9 N. E. 582; Sims v. Gay, 109 Ind. 501, 9 N. E. 120; Hibbits v. Jack, 97 Ind. 570, 49 Am. Rep. 478; Crawford v. Thompson, 91 Ind. 266, 46 Am. Rep. 598; Levengood v. Hoople, 124 Ind. 27, 24 N. E. 373; Wood V. Beasley, 107 Ind. 37, 7 N. E. 331; O'Harrow v. Whitney, 85 Ind. 140. ' Willard Eq. Jurisprudence, 525. A testator devised lands to his widow, gave certain legacies, and then to his widow his personal property, "on con- dition that she pay fifty dollars per year to my daughter, Martha Fox," and if Martha should marry a second time then "she shall not be entitled to said legacy from that time on," and "when said Martha shall have received an amount out of said personalty equal to three-fourths thereof, she shall not l)c entitled to any more, and the bal- ance shall be retained by my said wife." Martha became a widow and married again ; the widow of the testa- tor also married, and the former sued the latter, holding the property given her by said will, and her husband, to recover an installment, accruing after Martha's second marriage. All this, and that three-fourths of the fund had not been received by the plaintiff, ap- peared by the complaint. Held, that the husband of the principal defend- ant was a proper party, and the com- plaint as against him was good on de- murrer. Held, that the widow did not take the personal property upon a condition subsequent, but a gift to Martha was intended to be paid through her mother as trustee. Held, that the condition subsequent annexed to the gift to Martha was unreasona- ble, being an absolute prohibition of a second marriage, and was void, and the plaintilif was entitled to recover. Crawford v. Thompson, 91 Ind. 266, 515 CONSTRUCTION OF WILLS. 907 of marriage absolutely, and which act as a general prohibition on marriage are void.* in* A gift in trust upon the condition that the beneficiary shall not marry at all, will vest in the donee, and the condition is void.« A condition subsequent annexed to an annuity, m restraint of the marriage of the testator's widow, where there was no hmita- tion over, has been held to be in terrorem merely and void.^« There was nothing in the common law independent of the civil law, which made a condition restraining a widow from mar- riage void. The doctrine is a combination of the common law and the civil law effected by the ecclesiastical and equity courts." But where the words used in the will are in the nature of a limitation and not a condition, the estate will terminate upon the 46 Am. Rep. 598; VanGorder v. Smith, 99 Ind. 404. 'Crawford v. Thompson, 91 Ind. 266. 46 Am. Rep. 598. Where the lan- guage of a will and the intention of the testator admit it, bequests ex- pressed to be "on condition" subse- quent are, in modern times, to be con- sidered as imposing a trust, and not as conditions which shall take the property out of the legatee if he does not comply with them. * Mack V. Mulcahy, 47 Ind. 68 ; Perry Trusts, § 515. Where an estate for life, or years, is created with a re- version to the grantor, or a valid re- mainder over to designated persons, conditions imposing restrictions and qualifications upon the power to alien- ate or use the estate are valid. Con- ger V. Lowe, 124 Ind. 368, 24 N. E. 889, 9 L. R. A. 165n. "Crawford v. Thompson, 91 Ind. 266, 46 Am. Rep. 598 ; Parsons v. Win- slow, 6 Mass. 169, 4 Am. Dec. 107n ; Pom. Eq. Jur., § 933 ; Mack v. Mul- cahj', 47 Ind. 68. Where a testator de- vises real estate to his wife, so long as she remains his widow, after which it is to be equally divided among his heirs, the widow's estate ceases at her marriage, and she cannot claim as an heir on its termination. Brown v. Harmon, 11 Ind. 412 ; Wood v. Beas- ley, 107 Ind. Zl , 1 N. E. 331. Where a husband dies, leaving a wife and two children surviving him, having devised his land to his wife during widowhood, and she elects to accept the provisions made for her by will, her estate is limited in duration to the period of her widowhood, and a pur- chaser through a mortgage executed by her after a second marriage ac- quires no title to any part of the land. And in such case, the fact that no dis- position of the land after the wife should cease to be a widow was made, did not entitle her to any portion of it under the law, as her election to take under the will precluded any such claim. O'Harrow v. Whitney, 85 Ind. 140. " Crawford v. Thompson, 91 Ind. 266, 46 Am. Rep. 598; Newton v. Ma'rsden. 2 J. & H. 356; Stilwell v. Knapper. 69 Ind. 558. 35 Am. Rep. 240. 9o8 INDIANA PROBATE LAW. §515 marriage of the widow. It is said that "tlie technical words used to create a limitation are conjunctions relating to time, such as during, while, so long as, until, etc."'' The law is now well settled that a husband may by limitation restrict the estate of his surviving wife, so that it shall terminate with her marriage.*' A man may devise property to his wife during her widowhood, but if he devises to her an estate for life or in fee. upon condi- tion that she do not marry again, the devise is good, but the con- dition will be void.'* '^Tiedeman Real Prop., § 281. A testator devised to his wife and heirs, "for her to dispose of as she sees best * * the tract of land now living on * * during the time she lives a widow, or in my name. Then said land is to be divided equally amongst the pres- ent heirs of David Rupert and Mary, his wife, or the proceeds of the same, as the case may be." Held, that the testator devised to the widow an es- tate during widowhood which she might have conveyed. Held, also, that tlie widow having remarried without disposing of said estate, the estate ceased upon said second marriage, and that the land remained for distribu- tion amOng the children of the appel- lee and the testator, in accordance with the terms of the will. Leven- good V. Hoople, 124 Ind. 21, 24 N. E. 2)12). A devise of lands to the testa- tor's wife ''so long as she shall remain my widow," contains no condition in restraint of marriage but a limitation, and if she marries, the lands go to the heirs of the testator, in the absence of a devise over, the doctrine of the case of Spurgeon v. Scheible, 43 Ind. 216, being repudiated. Hibbits v. Jack, 97 Ind. 570, 49 Am. Rep. 478; Summit v. Yount, 109 Ind. 506, 9 N. E. 582. " Sims V. Gay, 109 Ind. 501, 9 N. E. 120; Hibbits V. Jack, 97 Ind. 570, 49 Am. Rep. 478; Tate v. McLain, 74 Ind. 493; O'Harrow v. Whitney. 85 Ind. 140; Brown v. Harmon, 12) Ind. 412; Summit v. Yount, 109 Ind. 506, 9 N. E. 582; Beshore v. Lytle, 114 Ind. 8, 16 N. E. 499; Stilwell v. Knapper, 69 Ind. 558, 35 Am. Rep. 240 ; Leven- good V. Hoople. 124 Ind. 27, 24 N. E. 2)11 ; Conger v. Lowe, 124 Ind. 368, 24 X. E. 889, 9 L. R. A. 165n ; Wood v. Beasley, 107 Ind. Zl , 1 N. E. 331, over- ruling on this point, Spurgeon v. Scheible, 43 Ind. 216. 'Mlarmon v. Brown, 58 Ind. 207; Coon V. Bean, 69 Ind. 474. A testator by his will gave his widow the residue of his estate after the payment of his debts, "to have and hold and use as her own for the benefit of herself and family, so long as she remains my widow," and in case she should marry again, "then it is my will that she should only take what the law pro- vides for widows of men who die in- testate, and that the residue be di- vided among my children according to law." The will provided also that if the widow remained unmarried un- til her death, then all the residue of his estate should be sold at public sale, and that the proceeds should be equally divided among his children, taking into consideration advance- ments made by him, or which his widow might make to any of the chil- dren. Held, that if the widow took I ri5 CONSTRUCTION OF WILLS. 9^9 § 516. When a devise shall not lapse.— The statute pro- vides that: "Whenever an estate, real or personal, shall be de- vised to any descendant of the testator, and snch devisee shall die during the lifetime of the testator, leaving a descendant who shall survive such testator, such devise shall not lapse, but the property so devised shall vest in the surviving descendant of the devisee as if such devisee had survived the testator and died in- testate.'"' The general rule of law is that where the legatee dies before the testator the legacy will lapse, but this statute creates an exception to this general rule, and instead of lapsing, the de- vise or legacy will vest in the surviving descendant of the de- visee. The word descendant used in this statute refers exclusive- ly to lineal descendants, or heirs in the direct descending line, and does not apply to kindred of the collateral line ; nor is there any distinction made in this state between lapsed devises of real estate and lapsed bequests of personal property; both are placed on precisely the same footing.'" Under this statute the widower of a deceased* devisee is not her descendant, and can take no part of such a devise or legacy." If, however, the legatee or devisee dies during the life of the testator and leaves no descendant the legacy or devise will lapse, and will fall into the residuum and pass to the residuary legatee, under the will she would take but a scendant. Maxwell v. Featherston, 83 life-estate in the real estate, in case Ind. 339; Collins v. Collins, 126 Ind. she should remain unmarried. Held. 559, 25 N. E. 704, 28 N. E. 190. A that as executrix she should not con- testator may provide agamst the laps- vert the real estate, or any part there- ing of a legacy by designating to of, into money, for the support of whom the legacy shall go m case of herself and children, or for payment the death of the first legatee. Borg- of debts contracted by her for such ner v. Brown, 133 Ind. 391, 33 X. E. support. Tate v. McLain, 74 Ind. 493. 92. If a devise is made to a brother '^ Burns' R. S. 1908, § 3127. Tay- of the testator, and the brother dies lor v. Conner, 7 Ind. 115; Clendening before the testator, the devise will v Clymer, 17 Ind. 155 ; Cunningham lapse. West v. West, 89 Ind. 529. V Dungan, 83 Ind. 572. If a legatee "West v. West, 89 Ind. 529; Hol- dies before the testator, the legacy brook v. McCleary, 79 Ind. 167 ; Max- will lapse unless the legatee was a de- well v. Featherston, 83 Ind. 339. scendant of the testator and left a de- " Prather v. Prather, 58 Ind. 141. 910 INDIANA PROBATE LAW. S 5 i6 if one is named in tlie will, otherwise to the heirs of the testator by descent." Where a life estate has been devised to one and the fee to an- other, the death of the devisee of the fee during the continuance of the life estate will not cause the devise of the fee to lapse for the reason that the fee became vested at the death of the testa- tor.^" For it is a general rule, well affirmed by the authorities, that a legacy or devise will not lapse, after it has once vested solely because the legatee or devisee dies before the testator.^" Where it appears that a bequest or devise was made to dis- charge a duty or obligation resting upon the testator, this will preclude a lapse although the legatee or devisee may die during the lifetime of the testator. The rule is well settled that a be- quest made in payment of a debt does not lapse by the death of the legatee prior to that of the testator.^^ And a testator may by express provisions in his will prevent the lapse of a devise in case of the predecease of the legatee or devisee, and the lapse '" Collins V. Collins, 12o Ind. 559, 25 N. E. 704, 28 N. E. 190 ; Holbrook v. McCleary. 79 Ind. 167; Maxwell v. Featherston, 83 Ind. 339; Wtst v. West, 89 Ind. 529. A devises to B, his wife, a life estate in certain real estate, and devises the remainder after her death to C, his son, and if C should die without issue, then one- third of said real estate to "descend" to his (C's) wife, if living, and the re- mainder to go to A's children. Held, that if C should survive A he (C) would take absolutelj- the remainder limited on the life estate, and in the event of C's death before A, C's wife would take one-third of said land and the remaining two-thirds would go to A's children. Held, also, that the provision of the will, disposing of the real estate in case of C's death, had reference to the death of C be- fore the death of the testator. Held, also, that the word "descend," as used tn the will, must be construed in the sense of to go, so as not to defeat the evident intention of the testator, such sense being the common and ordinary one. Held, also, that upon the death of C's widow, she having married again, her husband held an interest in the land so obtained by her. Borg- ner v. Brown, 133 Ind. 391, 33 X. E. 92. A lapsed legacy or devise goes into the residuum of the estate and passes, under the residuary clauses of the will, to the residuary devisees or legatees, or their decendants. Hol- brook v. McCleary, 79 Ind. 167. The word "descendant," as used, means an heir in the descending line, and can- not include collateral kindred, such as a brother. West v. West, 89 Ind. 529. "•Allen V. Mayfield, 20 Ind. 293. =" 18 Am. & Eng. Encyc. Law, p. 750. =^ Ballard v. Camplin, 161 Ind. 16, 67 N. E. 505. ,i6 CONSTRUCTION OF WILLS. 911 of the bequest will also be prevented or precluded by a clear im- plication of the intent of the testator to that effect. ^^ The testator may, if he thinks fit, prevent a devise from lapsing by declaring expressly, or in such terms that his intention cannot be misunderstood, what person or persons he intends to sub- stitute for any legatee who may die in his lifetime.-^ A construction of a will which will result in intestacy or a partial intestacy must, if possible, be avoided. So to avoid the lapsing of a legacy the word "descent" will be construed to mean ''to go," for the purpose of carrying out the evident intention of the testator.^* In the absence of a residuary clause in a will, or some other " 18 Am. & Eng. Encyc. Law, p. 753, Ballard v. Camplin, 161 Ind. 16, 67 N. E. 505. ^ Borgner v. Brown, 133 Ind. 391, 33 X. E. 92; Hutchinson's Appeal, 34 Conn. 300; 2 Redf. Wills, 163; 1 Jar. Wills, 619. The former distinction between lapsed bequests and lapsed devises, as to their disposition, is de- stroyed. West V. West, 89 Ind. 529. If a legatee or devisee named in a will, who is not a descendent of the testator, dies before the testator, the legacy or devise will lapse without re- gard to whether the legatee or devisee left descendants or not. Maxwell v. Featherston, 83 Ind. 339. "■* Mills v. Franklin, 128 Ind. 444, 28 N. E. 60; Roy v. Rowe, 90 Ind. 54; Borgner v. Brown, 133 Ind. 391, 33 N. E. 92; Gate v. Cranor, 30 Ind. 292; Spurgeon v. Scheible, 43 Ind. 216; Beach on Wills, 520; Morgan v. Mc- Neeley, 126 Ind. 537, 26 N. E. 395. A testator, by his will, gave five hundred dollars to his granddaughter, who died at the age of twenty-five, and be- fore the testator, leaving one infant child, J. A codicil provided that the legacy of any one dying in infancy should go to his or her children, if any, and that the "legacies" should only be paid to those respectively who have arrived at full age. Held, that J took the share of his mother, not under the will, but by virtue of the statute, and that payment to him could not be delayed until his majority. Cunningham v. Dungan, 83 Ind. 572. A testator devised all of his real es- tate to his wife for life. Subject to the wife's life estate he devised a cer- tain portion of said real estate to his son and the remainder to his daugh- ter. The daughter and her only child died in the testator's lifetime, and the son soon after his father. The widow elected to take under the will. Held, that the devise to the daughter lapsed, there being no residuary legatee, and as to the real estate devised to her the testator died intestate. Held, also, that as to the real estate devised to the son the widow's election to take under the will divested her of her one- third interest. Held, also, that the widow, because of her election, was divested of her one-third in the lands devised to the daughter, but retained a one-sixth interest therein. Collins V. Collins, 126 Ind. 559, 25 X. E. 704, 28 N. E. 190. 912 INDIANA PROBATE LAW. § 5^7 disposition of a lapsed, void or refused legacy or devise, as to that part of his estate the testator has died intestate, and it will de- scend to his heirs.^* § 517. A devise of rents and profits. — W here by a will the rents and prohts of land have been devised to one for a time, such devise gives to the devisee the right to the possession of the land for the time. It is said to be equivalent to a devise of the land itself, and will carry the legal as well as the beneficial inter- est therein." Or, as has been further said, "a devise of the rents and profits or of the income of lands passes the land itself, both at law and in equity," and a devise of the "free use," or of the use and occu- pation of land, passes an estate in the land, and consequently a right to let or assign it, and is not confined to the personal use or occupation of the property, unless the context clearly calls for the more limited construction." A devise of the proceeds of real estate is not materially diflferent from a devise of the income, and the rule is that a devise or grant of the income of land car- ries an estate in the land itself.-' "* Garrison V. Day, 36 I nd. App. 543, be construed together and held to 76 X. E. 188. mean, that so long as the real estate ^ Thompson v. Schenck. 16 Ind. 194 ; remains unsold the widow shall have 2 Jarman on Wills, 381 ; Gulick v. Gu- the rents and profits, and after sale lick, 25 N. J. Eq. 324. A bequest of the interest on the purchase-money, the rents and profits of real estate, Davis v. Hoover, 112 Ind. 423, 14 X. either for life or for a period of E. 468. years, without limitation or condition, "'Williams v. Owen, 116 Ind. 71, 18 entitles the devisee to the possession X. E. 389; Bowen v. Swander, 121 and control of the property devised. Ind. 164, 22 X. E. 725; Hunt v. Will- Thompson V. Murphy, 10 Ind. App. iains, 126 Ind. 493, 26 X. E. 177; But- 464, 27 N. E. 1094. terfield v. Haskins, 33 IMe. 392 ; Reed ="2 Jar. Wills. 403-5; Stout v. Dun- v. Reed, 9 Alass. 372; Fox v. Phelps, ning, 72 Ind. 343; Carlyle v. Cannon, 17 Wend. (X. Y.) 393; 3 Wash. Real 3 Rawie (Pa.) 489. Where, by one Prop., 405, 465; 2 Redf. Wills, 334. item of his will, a testator devises to Under a will leaving property to a his wife for life the rents and profits widow for life, at her death to be dis- of his real estate, and by a subsequent tributed between her children, and, in item directs that the property be sold case any child be dead leaving chil- and the proceeds loaned for the bene- dren, such children to take their pa- fit of his w-ife, the two provisions will rent's share, children of testator take § 517 CONSTRUCTION OF WILLS. 913 A devise to the wife of the devisor of the use and benefit of all the real and personal estate of the testator as long as she re- mains a widow, gives to her a life estate in the property de- vised.^'^ A devise as follows : "She shall be entitled to a living off my said land until she shall marry, and if she shall not marry, then until her death," was held to give the devisee a life estate in the land, upon condition that she remain unmarried.^" A devise of- ''one-half the proceeds, from year to year, of my farm," is equivalent to a devise of one-half the rents, issues and profits from such farm and vests in the devisee an interest in the land.^^ A bequest of the rents and profits of real estate, either for life or for a period of years, without limitation or condition, entitles the devisee to the possession and control of the property devised.^^ The old rule that a general devise of real estate, merely describ- ing the property, without defining the interest to be taken therein by the devisee, gives to such devisee only a life estate is yet in force in this state, although it has been abolished in many of the states as well as in England. ^^ It is a rule which often operates in contradiction of the other rule that the testator's intention shall prevail, for it will usually be supposed that a general devise, without any limitation, will carry the whole estate of the testator. For this reason courts are always ready to adopt any plausible excuse for rescuing particular cases from the wrong direction given them by the general rule, and where a will gives to the tes- tator's widow "all that remains of the estate after paying the debts, for her support," and there were no further provisions, no a conditional fee, subject to be de- X. E. 177 ; CarMe v. Cannon, 3 Rawle feated by their death before the (Pa.) 489. widow. Corey v. Springer, 138 Ind. " Thompson v. IMurphy, 10 Ind. 506, yj N. E. Z22. App. 464, Zl N. E. 1094; Hunt v. Will- =• Rumsey v. Durham, 5 Ind. 71 ; iams. 126 Ind. 493, 26 N. E. 177. Thompson v. Schenck, 16 Ind. 194 ; "^ Cleveland v. Spilman, 25 Ind. 95 ; Stout V. Dunning, 12 Ind. 343. Smith v. Meiser, 51 Ind. 419; Mills v. "^ Commons v. Commons, 115 Ind. Franklin, 128 Ind. 444, 28 N. E. 60; 162, 16 N. E. 820, 17 N. E. 271. Ross v. Ross, 135 Ind. 367, 35 N. E. 9. ^ Hunt V. Williams, 126 Ind. 493, 26 5S— Pro. L.\w. 914 INDIANA PROBATE LAW. § 5l8 residuary clause, etc., it was held the widow took the estate in fee simple.^* While it is the rule that the devise of the rents and profits, or of the income of the land, is in legal effect a devise of the land, yet this is only a convenient expression to indicate a rule of con- struction, that by the gifts of rents, income, profits, use. occu- pation, improvement, etc., the testator is presumed, in the ab- sence of the expression of any contrary intention, to have given the land itself; and any expression in the will inconsistent with such intention will be sufficient to defeat a devise of the land by the gift of the rents and profits only.''' The gift of interest, or income, in like manner, as a general rule, carries with it the fund itself, and is governed by analogous principles.^" § 518. The rule in Shelley's Case. — Tn construing devises of real estate made by will there is a rule which is at variance with the ordinaiy rules of construction. As is said by one law- writer : "While the latter seek for the intention of parties, and strive at its accomplishment, the former combats the intention, a conflict, which frequently raises immense difficulties as to whether the rule or the intention should prevail. Two estates are created, a particular estate in the ancestor and a remainder in his heirs. In the absence of the rule the heir would have an orig- inal and independent estate by purchase, not derived from or controllable by his ancestor; but the operation of the rule places the whole power over the inheritance in the ancestor, who can partially or totally defeat the expectation of his relations."" " Morgan v. McXecley, 126 Ind. 537, 8 S. E. 410; Kline, Appeal of, 117 Pa. 26 N. E. 395: Roy v. Rowe, 90 Ind. St. 139, 11 Atl. 866; Skinner v. Spann, 54; 2 Redf. Wills, 327; Ross v. Ross, — Ind. — , 93 N. E. 1061. 135 Ind. 367. 35 N. E. 9. '' In re Bruch's Estate, 185 Pa. St. ^"Diament v. Lore, 31 X. J. L. 220; 194, 39 Atl. 813; Durfee v. Pomeroy, Bowen v. Payton, 14 R. I. 257 ; Gray 154 X. Y. 583, 49 X. E. 132 ; Gulick v. V. West, 93 N. Car. 442. 53 Am. Rep. Gulick, 27 X. J. Eq. 498; Hopkins v. 462 ; Nudd v. Powers, 136 Mass. 273 ; Keazer, 89 Me. 347, 36 Atl. 615. Eskridge v. Farrar, 34 La. Ann. 709; ^'Wharton's Law Diet., 693; Mc- University v. Tucker, 31 W. Va. 621, Cray v. Lipp, 35 Ind. 116. § 5l8 CONSTRUCTION OF WILLS. 915 This rule of limitation is what is known as the rule in Shelley's Case, and is the law in Indiana, although it has been abolished in many of the states of the Union. The rule is thus stated : "Where a freehold is limited to one for life, and by the same in- strument the inheritance is limited, either mediately or immedi- ately, to heirs or heirs of his body, the first taker takes the whole estate, either in fee-simple or in fee-tail; and the word 'heirs' or 'heirs of the body' are words of limitation and not of purchase."^^ A thorough understanding of the application of this rule is of great practical importance, both in drawing wills and in constru- ing their provisions. The rule applies to grants or devises of real estate only, and not to personal property.^^ And by the rule the estate must be conveyed to heirs and vest without condition or contingency.*" It has been held that under this rule a devise to one for life, and after his death to his issue or issue of his body in this state, creates in the first taker a fee-simple estate;" but where the words "child" or "children" are used in devising real estate, they are to be construed as words of purchase and not of limitation, and the rule in Shelley's Case does not apply. *" ^'Mcllhinny v. Mcllhinny, 137 Ind. De Witt H. Lanphear die leaving a 411, 7u N. E. 147, 45 Am. St. 186, 24 wife, his said wife to have a life es- L. R. A. 489. Where a life estate is tate in said real property, said estate created in a devisee named and the to terminate at her death," vested in same will devises the remainder to the son, unmarried and childless at the other devisees who are named, and testator's death, only a life estate, their lawful heirs, such other devisees Ridgeway v. Lanphear, 99 Ind. 251. take an estate in fee simple. Shimer ^"- Gonzles v. Barton, 45 Ind. 295. v. Mann, 99 Ind. 190, 50 Am. Rep. 82 ; '= Andrews v. Spurlin, 35 Ind. 262. Hochstedler v. Hochstedler, 108 Ind. Where the testator in his will devises 506, 9 N. E. 467. an estate to his son for life, and pro- ^Siceloff V. Redman. 26 Ind. 251. vides that at the son's death the pcr- ''* Helm V. Frisbie, 59 Ind. 526. A sons who would have inherited from devise of real estate by a testator to the son, had he owned the fee at the his son "during his natural life, and time of his death, shall take the same at his death to his children, if he have and in the same proportion as the law any; and if he have no children, or if would cast it upon them, and declares there be no heirs of his body, then that the provisions of the item shall the real estate to his other heirs of "only vest in the devisee a life estate his own blood equally; and if the said * * * and no more," the rule in 9i6 INDIANA PROBATE LAW. §518 The term "legal heirs," when used in a will, will be construed to mean "child" or "children" when it clearly appears from the will that the testator used it in that sense." The term, "heirs of the body," means such of the issue or off- spring as may lawfully inherit.** But the term "heirs" is one of limitation, and has a fixed and legal meaning, and a mere presumed intention will not control its signification. It will not be construed as a word of purchase unless the testator's intention to so use it appears manifest from the whole instrument.*" The court in one case says: "We do no violence to the well- established rule that in the construction of wills we look to the four corners thereof and the intention of the testator as the main and controlling question, for the reason that when the word Shelley's Case does not apply and the son takes only a life estate. Eam- hart V. Earnhart, 127 Ind. 397, 26 N. E. 895, 22 Am. St. 652. "Underwood v. Robbins, 117 Ind. 308, 20 N. E. 230 ; Jones v. Miller, 13 Ind. ZZ7 ; Levengood v. Hoople, 124 Ind. 27, 24 X. E. 2,7Z; Smith v. Hun- ter, 2Z Ind. 580; Rusing v. Rusing, 25 Ind. 63; Rapp v. Matthias, 35 Ind. Z2>1\ Ridgeway v. Lanphear, 99 Ind. 251 ; Pate V. French, 122 Ind. 10, 23 N. E. 673; Waters v. Bishop, 122 Ind. 516, 24 N. E. 161 ; Griffin v. Ulen, 139 Ind. 565, 39 N. E. 254. ^nVaters v. Bishop, 122 Ind. 516, 24 N. E. 161. " Doe V. Jackman, 5 Ind. 283 ; Con- ger V. Lowe, 124 Ind. 368, 24 N. E. 889, 9 L. R. A. 16Sn; Siceloff v. Redman, 26 Ind. 251; Allen v. Craft, 109 Ind. 476, 9 N. E. 919, 58 Am. Rep. 425; Reddick v. Lord, 131 Ind. Z2>6, 30 N. E. 1085 ; Fowler v. Duhme, 143 Ind. 248, 42 N. E. 623. In the first item of a will the testatrix devised an undivided half of certain lands in fee- simple, to her son ; and the second item was of the following tenor: "I give and devise to my daughter, Bar- bara Will, now Burkhart, the remain- ing undivided one-half of said farm, during her natural life, and, after her decease, that said estate is to go to her lawful heirs." Held, that the de- vise in the second item is governed by the rule in Shelley's Case, the word "heirs" being a word of limitation and not of purchase. Held, also, that be- fore the court can conclude that the testatrix employed the word "heirs" in a sense different from that assigned it by law, it must be clearly shown by the context that the testatri.x em- ployed the word as one of purchase and not of limitation. Perkins v. Mc- Connell, 136 Ind. 384, 36 N. E. 121. A devises to M A, "and her heirs for- ever," where it appears that the word "heirs" was used as a word of limita- tion, vests in the first taker, under the rule in Shelley's Case, an estate in fee. Allen V. Craft, 109 Ind. 476. 9 N. E. 919, 58 Am. Rep. 425. g ti8 CONSTRUCTION OF WILLS. 917 'heir' is used as a word of limitation it expresses the intention 'of the testator to devise an estate in fee simple."" While this rule is declared to be a law of property in Indiana, the Supreme Court, in one case, says: "It will not in any case be allowed to overrule the manifest intent of the testator, pro- vided such intention be not unlawful or inconsistent with the rules of law. The rule is not designed to give meaning to words, but to fix the nature and quality of an estate. Whenever, then, the matter becomes certain that the term heirs is used with an intent that they should take as purchasers, the instrument should be so construed. Indeed, there is no rule that can guide us safely through the numerous cases and apparent conflict of authorities on this subject, save that which looks to the intent of the tes- tator."*^ It is not, however, always the presumed or actual intention of the testator, but, as contra-distinguished therefrom, his legal in- tention that must be enforced; and the rule is sometimes unques- tionably enforced when its enforcement defeats the intention and actual purpose of the testator."'^ As to the effect of the application of the rule it is said : "It has seemed to many that there is a conflict between the rule de- claring that the intention of the testator must govern, and the **Lee V. Lee, 45 Ind. App. 645, 91 368, 24 X. E. 889, 9 L. R. A. 165n; N. E. 507; Teal v. Richardson, 160 Allen v. Craft, 109 Ind. 476, 9 N. E. Ind. 119, 66 N. E. 435; Lamb v. Med- 919, 58 Am. Rep. 425. A devise of the sker, 35'lnd. App. 662, 74 N. E. 1012; rents and profits of lands to M until Burton v. Carnahan, 38 Ind. App. 612, his youngest child shall become of 78 N. E. 682. age, "upon the happening of which "Doe V. Jackman, 5 Ind. 283; event the fee-simple of said lands Hochstedler v. Hochstedler, 108 Ind. shall then vest absolutely in said M 506 ; 9 N. E. 467 ; Shimer v. Mann, 99 and his heirs, and may by him or Ind. 190, 50 Am. Rep. 82; Allen v. them be disposed of as he or they Craft, 109 Ind. 476, 9 N. E. 919, 58 Am. may judge best for his or their inter- Rep. 425; Jenkins v. Compton, 123 est," vests in M an estate in fee-sim- Ind. 117, 23 N. E. 1091. pie when his youngest child reaches *" Bigg's V. McCarty, 86 Ind. 352, 44 full age, there being nothing in the Am. Rep. 320; McCray v. Lipp, 35 context or situation of the parties Ind. 116; Siceloff v. Redman, 26 Ind. plainly indicating a different intention. 251 ; Millett v. Ford, 109 Ind. 159, 8 Shimer v. Mann, 99 Ind. 190, 50 Am. N. E. 917; Conger v. Lowe, 124 Ind. Rep. 82. 9i8 INDIANA PROBATE LAW. §518 rule in Shelley's Case; but this appearance of conflict fades away when it is brought clearly to mind tiiat, when the word 'heirs' is used as a word of limitation, it is treated as conclusively ex- pressing the intention of the testator. Where it appears that the word was so used, the law inexorably fixes the force of the in- strument. If once it is granted thai the word was used in its strict legal sense, nothing can avert the operation of the rule in Shelley's Case."^" The rule in Shelley's Case is not regarded as a device to discover the intention of a testator, but is only applied after such intention has been discovered, when, by its own in- exorable force, it unites in the ancestor any estate which his heirs are to take as such, after a precedent estate given to him, no mat- ter what the purpose of the testator may have been; and there is a material and controlling distinction between a devise of an es- tate to a person named and his lawful heirs, and a devise to tlie lawful heirs of a person named.'*' '■' Allen V. Craft, 109 Ind. 476, 9 N. E. 919, 58 Am. Rep. 425. Where a will gave a certain share of the tes- tator's real estate to his daughter, "M. R., and her heirs (exclusively)," she took a fee-simple title to the real es- tate subject to be disposed of and con- veyed by deed in which her husband should join. The word "heirs" in the will is used in its technical legal sense, and vests a fee in the first taker. Reddick v. Lord, 131 Ind. 336, 30 N. E. 1085. The rule in Shelley's Case is a law of property in this state, but it will not be allowed to override the manifest and clearly expressed in- tention of a testator; mere negative restraining words, however, will not defeat its operation. Ridgeway v. Lanphear, 99 Ind. 251 ; Earnhart v. Earnhart, 127 Ind. 397, 26 N. E. 895, 22 Am. St. 652. When it becomes manifest that the word "heirs" was used as a synonymn for "children," or in some modified sense, the rule in Shelley's Case will not be applied to overturn the testator's intention. Mc- Mahan v. Newcomer, 82 Ind. 565 ; Millett V. Ford, 109 Ind. 159, 8 X. E. 917; Conger v. Lowe, 124 Ind. 368, 24 X. E. 889. 9 L. R. A. 165n ; Jackson v. Jackson, 127 Ind. 346, 26 X. E. 897. *" Conger v. Lowe, 124 Ind. 368, 24 X. E. 889, 9 L. R. A. 165n. A widow is deemed an heir of her deceased husband as to her inheritance of his real estate under the statute of de- scents ; but when she claims a share in such real estate as one of several persons designated as heirs in his will, the meaning of that word must be sought by ascertaining the intention of the testator, as gathered from the whole will ; and where a will, after making provision for the testator's wife during her widowhood, directed that when she should cease to be his widow, "and my youngest children come of age, all my real estate be di- vided equally among all my heirs," the word heirs was construed as meaning the children of the testator and de- §519 CONSTRUCTION OF WILLS. 9I9 § 519. No exception to the rule. — The question is not whether it was intended by the testator that the rule should not operate, for whether or not it shall operate is not within his power to say, but whether he used the words "heirs," or "heirs of the body," as synonymous with the word "children," or its equiva- lent. It is because the limiting words are not used in their legal sense that the courts do not apply the rule in Shelley's Case, for where the words are so used, the rule must be applied. '^^ As is well said, "The requisite limitations to the ancestor and his heirs being found, the rule must be applied. It can never be a question whether the rule shall be applied or not, whether the author of the limitations intended it to be applied or not. We might as well ask whether a testator intended to contravene the rule against perpetuities. It will no more yield to individual in- tention than any other fundamental law of property. The rule admits of no exceptions. "^- The word issue in a will is regarded as prima facie a word of limitation, and is synonymous to heir, or heirs of the body, scendants of his deceased children, v. Mann, 99 Ind. 190, 50 Am. Rep. 82; and not as including the widow. Ridgeway v. Lanphear, 99 Ind. 251 ; Brown v. Harmon, 72i Ind. 412. Brumfield v. Drook, 101 Ind. 190; "Hileman v. Bouslaugh, 13 Pa. St. Hochstedler v. Hochstedler, 108 Ind. 344. 53 Am. Dec. 474; Allen v. Craft, 506, 9 N. E. 467; Levengood v. 109 Ind. 476, 9 N. E. 919, 58 Am. Rep. Hoople, 124 Ind. 27, 24 N. E. 2)7i ; 425; Walker v. Vincent, 19 Pa. St. Jackson v. Jackson, 127 Ind. 346, 26 369; Underwood v. Robbins, 117 Ind. N. E. 897; Stevens v. Flannagan, 131 308, 20 X. E. 230; Conger v. Lowe, Ind. 122, 30 N. E. 898; Essick v. Ca- 124 Ind. 368, 24 X. E. 889, 9 L. R. A. pie, 131 Ind. 207, 30 N. E. 900. In a 165n. The word "heirs" has a fixed, will the force of the word "heirs" legal meaning, and can only be held may be controlled by the context, to mean children, or to be a word of Griffin v. Ulen, 139 Ind. 565, 39 X. E. purchase, when it is clear that such 254. was the intention of the testator. Mc- ^' Hays' Prin. for Expounding Dis- Nutt V. McXutt, 116 Ind. 545, 19 X. positions of Real Estate 96; Inger- E. 115, 2L. R. A. 372n; Tinder V. Tin- soil's Appeal, 86 Pa. St. 240; Doeb- der. 131 Ind. 381, 30 X. E. 1077. The ler's Appeal, 64 Pa. St. 9; Shimer v. term "legal heirs" will be construed Mann, 99 Ind. 190, 50 Am. Rep. 82; to mean "child or children," when it Conger v. Lowe, 124 Ind. 368, 24 X. clearly appears from the will that the E. 889, 9 L. R. A. 165n. testator used it in that sense. Shimer 920 INDIANA PROBATE LAW. §519 and will be so construed when used without any explanatory words showing that it was used in a restricted sense.'*^ The rule does not apply where it unequivocally appears that the persons who are to take are not to take as heirs of the de- visees, nor will the devise be construed to vest a fee, when it clearly appears that such was not the intention of the testator/* In applying the rule, confusion, when it exists, arises in ascer- ''" Quackenboss v. Kingsland, 102 N. Y. 128, 6 N. E. 121, 55 Am. Rep. 771n; Sibley v. Perry, 7 Ves. Jr. 522; Pow- ell V. Board of Domestic Missions, 49 Pa. St. 46; Robins v. Quinliven, 79 Pa. St. 333. The term '"heirs of the body" means such of the issue, or off- spring, as may lawfully inherit. Waters V. Bishop, 122 Ind. 516, 24 N. E. 161. When the term "heirs" clearly ap- pears to be used as descriptive of a class who are to take as devisees, the fee will not vest in the first taker, but where the word is connected with the name of the first taker, it carries the fee, unless it clearly appears that it was not used in its ordinary legal sig- nification. Shimer v. Mann, 99 Ind. 190, 50 Am. Rep. 82. When the word '"heirs" is used as a word of hmita- tion, it is treated as conclusively ex- pressing the intention of the testator. Allen V. Craft, 109 Ind. 476, 9 N. E. 919, 58 Am. Rep. 425. The word "children" is a word of purchase and not of limitation, and when used with- out words adding to its force, the first taker of the estate does not take the fee. Ridgeway v. Lanphear, 99 Ind. 251. '* Conger v. Lowe, 124 Ind. 368, 24 N. E. 889, 9 L. R. A. 165n ; Millett v. Ford, 109 Ind. 159, 8 N. E. 917; Earn- hart v. Earnhart, 127 Ind. 397, 26 N. E. 895, 22 Am. St. 652; Fountain County Coal &c. Co. v. Beckleheimer, 102 Ind. 76, 1 N. E. 202, 52 Am. Rep. 645; Daniel v. Whartenby, 17 Wall. (U. S.) 639, 21 L. ed. 661; Belslay v. Engel, 107 111. 182. The word "issue" is ordinarily a word of limitation of the same force as the word ""heirs." Allen V. Craft, 109 Ind. 476, 9 X. E. 919, 58 Am. Rep. 425. A testator, after de- vising a portion of his estate to his children '"as tenants in common," but that the share of one daughter should be less than the shares of the other children, provided that her share ■"shall descend to her and her children after her free from and beyond any control of her husband, * * * and unincumbered from any of the debts and liabilities of his forever. Held, that she took in fee-simple, and not a mere life-estate. Lennen v. Craig, 95 Ind. 167. A devise of real estate by a testator to his son '"during his nat- ural life, and at his death to his chil- dren, if he have any, and if he have no children, or if there be no heirs of his body, then the real estate to his other heirs of his own blood equally; and if he die leaving a wife, his said wife to have a life-estate in said real property, sdid estate to terminate at her death," vested in the son, unmar- ried and childless at the testator's death, only a life-estate. Ridgeway v. Lanphear, 99 Ind. 251. §519 CONSTRUCTION OF WILLS. 921 taining from the will what was the intention of the testator. This intention when ascertained must control."'' The rule that the word "heirs," when found in a will, will be construed as a word of limitation, and not of purchase, unless there be explanatory words clearly showing that it was used in a popular or restricted sense, admits of no exception, and when the word is used as a word of limitation, it is wholly immaterial that the testator's intention may be frustrated by the application of the rule.^^ "Perkins v. McConnell, 136 Ind. 384, 36 N. E. 121; Conger v. Lowe, 124 Ind. 368, 24 N. E. 889; 9 L. R. A. 165n. Superadded words which mere- ly describe or specify the incidents of the estate created by such a word of limitation as the word "heirs" do not cut down the interest of the devisee. Allen V. Craft, 109 Ind. 476, 9 N. E. 919, 58 Am. Rep. 425. '"'■Conger v. Lowe, 124 Ind. 368, 24 N. E. 889, 9 L. R. A. 165n; Allen v. Craft, 109 Ind. 476, 9 N. E. 919, 58 Am. Rep. 425; Reddick v. Lord, 131 Ind. 336, 30 N. E. 1085. A testator devised land to his son during his nat- ural life, declaring that upon the death of his son, or upon his refusal to occupy or Hve on the farm, "I will, devise and bequeath the same to the said Samuel M. Conger's heirs." Samuel M. Conger took possession of the farm, but afterward conveyed it by warranty deed, and ceased to live upon it. This suit is by the children of Samuel M. Conger, who is still in life, their claim being that under the will of the grandfather the title vested in them, and that they became entitled to the possession, when their father abandoned them and conveyed away the land. Held, that the word "heirs" is to be construed to mean "children," and that upon the death of the testa- tor the devisee took a life-estate in the land defeasible upon condition that he refuse to live upon or occupy the estate, and that the will created a vested remainder over in fee to the testator's children, to take effect in possession upon the termination of the estate of the father. Held, also, that immediately upon the conveyance by their father, the children were en- titled to possession. Conger v. Lowe, 124 Ind. 368, 24 N. E. 889, 9 L. R. A. 165n. A testator bequeathed to his daughter a sum of money, directing that it be put at interest and the prin- cipal paid to her when she became twenty-one years of age, or the day of her marriage; '"but if she should die without legal heirs, or before she reaches twenty-one years, her share of my estate shall be given by my ex- ecutor to my mother, brothers and sisters, or their representatives, share and share alike." Held, that the term "legal heirs" was used in its limited sense of "child or children," and upon the death of the legatee, an infant and unmarried, after the death of the tes- tator's mother, brothers and sisters, the children of the latter are entitled to the estate to the exclusion of the legatee's brother and sister of the half-blood. Underwood v. Robbins, 117 Ind. 308, 20 X. E. 230. 922 INDIANA PROBATE LAW. § 52O The courts in this state, while not favorable to the rule, have declared it "too firmly established to be shaken by the courts," and that it would be enforced, "not because it is just or whole- some, but because it is law;" and that "its operation more fre- quently defeats the just and undoubted intention of grantors and testators than any other effect it has." Again, "The rule had its origin in the principles and policy of feudal tenures, the policy being to discourage alienation and to favor the descent of land in the line of inheritance. This policy does not seem in harmony with the spirit of our institutions, and accordingly the rule in Shelley's Case has been abrogated by statute in many of the states. It has, however, as yet remained the law in Indiana."^^ § 520. The estate liable for debts. — Whether a person dies testate or intestate, the estate he leaves is liable for his debts and must first be applied to their payment. While the law permits a testator to make almost any disposition of his estate which seems to him proper, it provides that he shall, in no way, so dispose of his estate by will as to affect its liability for the payment of his debts." And while, as has been shown, the personal property is the primary fund out of which debts shall be paid, yet the entire es- tate, both real and personal, is held liable for their payment. A testator, however, may charge any particular portion of his estate with the payment of his debts to the exoneration of the rest. But when it becomes necessary to resort to his real estate for their payment, that portion of it, if any, which is undevised must be first taken. The statute says: "Whenever any part of the real estate of a testator is left undevised by his will, and his personal estate shall be insufficient for the payment of his debts, the un- devised real estate shall be first chargeable with debts, in exonera- tion, as far as it will go, of the real estate that is devised, unless it shall appear from the will that a different disposition of the as- sets for the payment of his debts was made by the testator, when '"Mcllhinny v. Mcllhinny, 137 Ind. L. R. A. 489; Waters v. Lyon, 141 411, Zl N. E. 147, 45 Am. St. 186, 24 Ind. 170, 40 N. E. 662. - '•* Burns' R. S. 1908, § 3126. ;20 CONSTRUCTION OF WILLS. 923 they shall, for that purpose, be disposed of in conformity with the provisions of the will.""® "And the naming of an executor in a will shall not operate as a discharge of any just claim the testator had against such execu- tor, but the same shall be settled according to law.'""' "And the discharge of any demand by the testator against any person shall be construed only as a specific bequest of such de- mand, and the amount thereof shall be included in the inventory of the effects of the deceased, and if necessary be applied to the payment of his debts; and, if not necessary for that purpose, shall be paid in the same manner as other specific legacies.'"' The devisee of land, like the heir, takes such land subject to its liability for the payment of the testators debts, and any pur- chaser from a devisee, pending the settlement of the estate holds the lands subject to the same liability.'' And the widow of a tes- tator who elects to take under her husband's will instead of the law, takes the property devised or bequeathed to her subject to sale, if necessary, for the payment of his debts.'^ There is a statute though, which provides : "When any estate, real or personal, that is devised, shall be taken, in whole or in part, from the devisee for the payment of the debts of the tes- tator, all the other devisees shall contribute their respective por- tions of the loss to the person from whom the estate is taken, so as to make the loss fall equally on such devisees according to the estimated value of the property received by each of them, unless the testator, in his will, in making a specific devise, shall have virtuallv exempted any devisee from his liability for the pay- ment of the debts with the others, or shall have, by any provision in his will, required any appropriation of his estate, or any part ™ Burns' R. S. 1908, § 3125. election of either paying the debts and «" Burns' R. S. 1908, § 3128. charges against her husband's estate « Burns' R S 1908, § 3130. or of assuming to pay such debts and -Moncrief v. Moncrief, n Ind. charges, and of thus releasing the 587 • Weakley v. Conradt, 56 Ind. 430. property devised and bequeathed to =^kayser v. Hodopp, 116 Ind. 428, 19 her, or permitting the property to be N E 297. In this case the court says : sold and the proceeds to be applied in "After Mrs. Hodopp elected to take payment of those debts and charges. under the will, she had the further 924 INDIANA PROBATE LAW. § 52O of it, for the payment of his debts, different from that prescribed in this section, in which case the estate shall be applied in con- formity with the provisions of the will/'* Unless such liability is imposed as a condition of the devise, a devisee does not become personally liable for the testator's debts, even where such debts are made a charge against the land de- vised/'' The statute provides that : "Whenever any person shall have devised his estate, or any part thereof, and any of his real estate, subject to a mortgage executed by such testator, shall descend to an heir or pass to a devisee, and no specific direction is given in the will for the payment of such mortgage, the same shall be dis- charged as follows: ist, if such testator shall have charged any particular part of his estate, real or personal, with the payment of his debts, such mortgage shall be considered a part of such debts; 2d, if the will contain no direction as to what part of his estate shall be taken for the payment of his debts, and any part of his personal estate shall be unbequeathed or undisposed of by his will, such mortgage shall be included among his debts, to be dis- charged out of such estate unbequeathed or undisposed of.""® If a will creates a charge upon lands and the will is duly proved and recorded, it is sufficient notice of such charge to all subse- quent purchasers of the land." No particular form of words is "Burns' R. S. 1908, § 3124. a charge upon devised lands, the de- ** Hancock v. Fleming, 103 Ind. 533, visees by accepting the devise do not 3 N. E. 254. When lands are devised become personally liable for such to one who, by the will, is directed to debts. Copeland v. Copeland 89 Ind. pay a legacy, the legacy is a charge 29; Hayes v. Sykes, 120 Ind. 180, 21 upon the lands devised, and when pay- N. E. 1080. Devisees of land are not rnent of the legacy is made a condi- liable to an action for a legacy tion of the devise, its acceptance charged thereon until they have taken creates also a personal liability to the possession, the legacy not being due legatee which may be enforced with- until then. Wilson v. Moore, 86 Ind. out resorting to the land, the lien still 244. remaining as a security. Porter v. *'* Burns' R. S. 1908, § 3129. Jackson, 95 Ind. 210, 48 Am. Rep. 704. "" Wilson v. Piper, 11 Ind. 437 ; If the debts of a testator are made Nash v. Taylor, 83 Ind. 347. 521 CONSTRUCTION OF WILLS. 925 necessary to create a charge against land, in fact the rule is well established a charge may be created by implication.^^ § 521. When legacies a charge. — The rule is well settled that a devisee of real estate who has accepted the estate devised is personally liable for the payment of the legacies given by the will, and which are made a specific charge upon such real estate; and where the personal estate is insufficient to discharge such legacies, they become a lien upon devised real estate of the testator. The personal liability of the testator does not divest the real estate of such lien where, by the terms of the will, such real estate is bound for the payment of such legacies.^" In Willard's Equity, page 489, the law is thus stated : "The charge of a legacy upon real estate, in aid or in exoneration of the personalty, may be, and frequently is, created by implication merely. If the testator gives a legacy, without specifying who ''Xash V. Taylor, 83 Ind. 347; Da- vidson V. Coon, 125 Ind. 497, 25 N. E. 601, 9 L. R. A. 584n. In determining whether it was the intention of the testator to charge legacies upon land, parol evidence is competent to prove the situation and condition of the tes- tator and his property at the time the will was made. Black v. Richards, 95 Ind. 184; Pocock v. Redinger, 108 Ind. 573, 9 N. E. 473, 58 Am. Rep. 71n; Duncan v. Wallace, 114 Ind. 169, 16 N. E. 137. As the personal estate is made by law, the primary fund out of which legacies are to paid, it will be held, in the absence of countervailing facts, that the testator intended that the personal estate only should be used to pay them. Duncan v. Wallace, 114 Ind. 169, 16 N. E. 137. °"Lindsey v. Lindsey, 45 Ind. 552; Burch V. Burch, 52 Ind. 136; Watt v. Pittman, 125 Ind. 168, 25 N. E. 191; Lofton v. Moore, 83 Ind. 112. It is firmly established that a charge upon lands may be imolied *and requires no particular form of words. Nash v. Taylor, 83 Ind. 347. A will contained this provision: "I give to my son, Joseph Coon, the sum of eight hun- dred dollars in money, to be made out of my estate, and I also direct that my son Joshua shall have three hun- dred dollars, also to be made out of my estate after the death or marriage of my wife; when the above amounts of money shall have been paid I direct that the remainder of my whole es- tate shall be equally divided among my heirs." J. C.'s legacy remains unpaid. Held, that as the will does not specifi- cally devise the land, but does, by its terms, bequeath a legacy to J. C, and make it a charge upon the land, it was not necessary in order to have the lien of the charge established that the complaint should allege that the testa- tor had not sufficient personal estate to satisfy the legacy at the time he executed the will. Davidson v. Coon, 125 Ind. 497, 25 N. E. 601, 9 L. R. A. 58-1" 926 IXDIAN'A PROHATE LAW & .■) _'I shall pay it, or out of what fund it shall be paid, the legal pre- sumption is that he intended it should be paid out of his personal estate only; and if that is not sufticicnt the legacy fails. So, if he directs his executors to pay a legacy, without giving to them any other fund than the personal estate out of which they can pay it. But where the real estate is devised to the person who, by the will, is directed to pay the legacy, it has frequently been decided that such legacy is an equitable charge upon the real estate so de- vised, although the devisee is also the executor, or is the residuary legatee of the personal estate; unless there is something in the will itself to indicate a contrary intention on the part of the testator."'" And in i Story's Equity, 602: "If there be a gen- eral gift of legacies in a will, followed by *a gift of the residue,' or 'rest,' or 'remainder,' and especially where all these terms are used with reference both to real and j)ersonal estate, the legacies will be regarded as a charge upon the realty. And if the residu- ary devisee mortgage the real estate the mortgagee will hold sub- ject to the legacies."'^ '" Where the will gives the widow a life estate in the land and in the per- sonal property thereon, it does not show a disposition of all the personal property, and, to charge the land with the payment of legacies, the want of suliicicnt personal property to pay them, at the time the will was exe- cuted, must be shown. Duncan v. Wallace, 114 Ind. 169, 16 N. E. 137. If lands upon which a legacy is a lien are sold upon proceedings in partition as being unencumbered, tlie purchaser may, by suit, require the legatee to re- sort to the proceeds of the land while the same is in court, for the satisfac- tion of the legacy. Porter v. Jackson, 95 Ind. 210, 48 Am. Rep. 704. If a will creates a charge upon lands, and it is duly proved and recorded, all sub- sequent purchasers ot the land must take notice of such charge. Wilson V. Piper, n Ind. 437; Xash v. Taylor, 83 Ind. 347. The rule is well settled that, when real estate is devised to the person who, by the will, is directed to pay a legacy, such legacy is an equita- ble lien upon the real estate so de- vised. Castor V. Jones, 86 Ind. 289; Manifold v. Jones, 117 Ind. 212, 20 X. E. 124; Watt v. Pittman, 125 Ind. 168, 25 X. E. 191; Davidson v. Coon, 125 Ind. 497, 25 X. E. 601, 9 L. R. A. 584n. .\ legatee whose legacy is a charge upon land may maintain an action to establish the lien after the estate has been finally settled. Gould v. Steyer, 75 Ind. 50; Reynolds v. Bond, 83 Ind. 36. ' Where lands were devised to the sons of the testator, and it was pro- vided that after the arrival of the sons at the age of twenty-one years the widow of the testator should have a living off of the land until her death or marriage, it was held that such liv- ;2I CONSTRUCTION OF WILLS. 927 In the leading case of Harris v. Fly, 7 Paige (N. Y.) 421, the court says: "Upon a full examination of authorities, therefore, I am satisfied that where real estate is devised upon condition to pay a legacy, or with a direction to the devisees to pay the legacy in respect to the estate so devised to him, and because that real estate has been thus devised, such real estate is in equity charge- able with the payment of the legacy, unless there is something in the will to rebut the legal presumption, or from which it can be inferred that the testator intended to exempt the estate devised from that charge."'" ing was made a charge upon the rents and profits of such lands, but not against the devisees personally, and that a partition of the lands, or a sale thereof under a clause in the will, would not divest such widow of her rights. Commons v. Commons, 115 Ind. 162, 16 N. E. 820, 17 N. E. 271. The substance of a writing in the form of a will was, that the testator gave to his son-in-law certain personal property and a farm, to be held dur- ing the life of the testator and wife, and, after tlicir deaths, the devisee to pay all taxes, take care of the testa- tor and wife while they lived, pay their funeral expenses, take care of a daughter while she remained unmar- ried, and "pay me two hundred and fifty dollars by the first of January in each year, * * * during the natural lifetime of myself and wife," with in- terest after maturity, and to live on the farm with the testator while the latter and his wife lived; and the de- visee accepted the provisions of the will, taking possession, &c. Held, that the instrument, though having some elements of a contract, yet was a will, inasmuch as it was a testamentary dis- position of property. Held, that, upon the death of the testator, his widow became entitled to an annuity of two hundred and fifty dollars, which was a charge upon the land de- vised. Castor v. Jones, 86 Ind. 289. '-Cann v. Fidler, 62 Ind. 116; see also § 347, ante; Wilson v. Piper, 11 Ind. 437; Wilson v. Moore, 86 Ind. 244; Nash v. Taylor, 83 Ind. 347; Por- ter v. Jackson, 95 Ind. 210, 48 Am. Rep. 704; Dodge v. Manning, 11 Paige (X. Y.) 334; Brown v. Knapp, 79 N. Y. 136; Fuller v. McEwen, 17 Ohio St. 288; Jennings v. Sturdevant, 140 Ind. 641, 40 N. E. 61. Where property is devised to a wife "to use and dispose of as she may think best for herself and my children," she takes it charged with an implied trust for the use of herself and the testa- tor's children ; and the word "chil- dren" will be held to mean the testa- tor's illegitimate children by the dev- isee, to the exclusion of his legiti- mate children by a former wife, when the circumstances show such to have been his intention. Elliott v. Elliott, 117 Ind. 380, 20 N. E. 264, 10 Am. St. 54. Where a testator made various bequests of money, and then, by the terms of the will, gave to his son and daughter "all the balance or residue of his estate, real and personal," and after the payment of the testator's debts and the costs of administration there was not sufficient personal estate left to pay the bequests, they became 928 INDIANA PROBATE LAW. §522 Such liability, once accepted, extends to the whole legacy, although it may exceed in amount the entire value of the land devised. The personal liability against the devisee may be en- forced, or resort be had to the land, or both if necessary.''' .^ 522. Rights of husband and wife. — The law gives to a husband or wife, upon the death of one, certain fixed rights in the estate of the other, and every rule of descent and distribution is made subservient to such rights, and neither husband nor wife can deprive the other of the interest in his or her estate thus given by the law, without the consent of the other. The power to dispose of all property by will is subject to this rule of law, and if a testator is married such testator cannot, by will, make any dis- position of his or her estate, which will deprive the surviving spouse of the interest the law gives him or her to such estate. Such spouse, however, may be put to an election.*' a charge on the real estate, as it was not specifically devised, but merely in- cluded in tile residuary clause. Amer- ican Cannei Coal Co. v. Clemens, 132 Ind. 163, 31 N. E. 786. Where one devisee, who holds enforceable claims against the testator's estate, enters into a contract with another devisee, upon whose lands the claims are a charge, in pursuance of which the lat- ter pays to the former full considera- tion for the claims, the settlement is valid, in the absence of fraud or mis- take, and the claims involved will be deemed extinguished. Hayes v. Sykes, 120 Ind. 180, 21 N. E. 1080. Where a testator devises land charged with the payment by the devisee of a sum of money to his estate, within a certain time, and the devisee, as executor of the will, charges himself with the sum to be paid by him, the charge on the land will be regarded as paid and ex- tinguished as to the subsequent good- faith purchasers. Manifold v. Jones, 117 Ind. 212. 20 X. E. 124. "Porter v. Jackson, 95 Ind. 210, 48 -Am. Rep. 704; Brown v. Knapp, 79 N. V. 136; Clyde v. Simpson, 4 Ohio St. 445; Gitnbcl v. Stolte, 59 Ind. 446; Milligan v. Poole, 35 Ind. 64. For further on the subject of legacies and tlieir payment, see ante, § 347. •* Burns' R. S. 1908, § 3043 et. seq. .\ widow, to whom a life-estate is de- vised in lieu of her interest in her husband's land, manifests her inten- tion to take under the will by claiming such life-estate as exempt from exe- cution. Barkley v. Mahon, 95 Ind. 101. A widow cannot accept the pro- visions of a will and also claim under the statute unless it clearly appears that the testator so intended. Rags- dale V. Parrish, 74 Ind. 191; ©'Har- row v. Whitney, 85 Ind. 140; Wilson V. Moore, 86 Ind. 244. Where a tes- tator by his will disposes of all his property and makes provision for his widow, which she accepts, her right to the five hundred dollars allowed her by law is waived. Wright v. Jones, §522 CONSTRUCTION OF WILLS. 929 The rule is that where a provision is made in the will of a testator for a surviving husband or wife, if it does not clearly appear from such will that the provision so made is to be in addition to the interest in the testator's estate given by the law to such surviving husband or wife ; or if it appears from the will that the provision made therein is to be in lieu of the interest given by the statute, such survivor must elect whether to take under the will or under the statute." The act of election is an affirmative one, and must be per- formed in compliance with the provisions of the statute in refer- 105 Ind. 17, 4 X. E. 281; Hurley v. Mclver, 119 Ind. 53, 21 N. E. 325; Shipman v. Keys, 127 Ind. 353, 26 N. E. 896. A testator, by one item of his will, gave certain real estate to his wife, remainder in fee to his children, and also certain personal property; and by the next item he gave the res- idue of his real and personal estate to his children, "after my beloved wife has taken her portion according as the law provides." Held, that the provi- sion made in the first item was plainly in addition to the right in his estate given by law to the widow, and, by virtue of the statute, she was entitled to both. Burkhalter v. Burkhalter, 88 Ind. 368; Like v. Cooper, 132 Ind. 391, 31 N. E. 1118. " Like V. Cooper, 132 Ind. 391, 31 N. E. 1118;. Clark v. Clark, 132 Ind. 25, 31 N. E. 461; Young v. Pickens, 49 Ind. 23; Ragsdale v. Parrish, 74 Ind. 191. Where a testator, by his will, makes a specific provision for his widow, but does not declare that such provision is to be in lieu of that made by the law, the widow's right to the five hundred dollars allowed her by law is not waived by her acceptance of the provisions of the will, unless the assertion by the widow of the right to take both under the law and under the will would defeat the purpose of the testator as shown by the disposition which he has made of the residue of his property. Shipman v. Keys, 127 Ind. 353, 26 N. E. 896. Where a widow refuses to accept the provision made for her by her husband's will and elects to take under the law, she takes one-third of his land in fee, and if he leaves no child and no father or mother, she also takes any portion of his estate left undisposed of by the will, and no more. Morris v. Morris, 119 Ind. 341, 21 N. E. 918; Collins v. Collins, 126 Ind. 559, 25 N. E. 704, 28 X. E. 190. Where the elements of estoppel are absent, and where it is evident that the election of the widow is not the result of a reasonable un- derstanding of the effect of the act, and where the act is sought to be re- voked within the statutory period for exercise of the election to take under the law, such revocation should be permitted. Garn v. Gam, 135 Ind. 687, 35 X. E. 394. An allegation that a widow has not elected to take under the will is not equivalent to an allega- tion that she has elected not to take under the will, and has taken under the law. Wilson v. Moore, 86 Ind. 244; Hopkins v. Quinn, 93 Ind. 223. 59 — Pro. L.wv. 930 INDIANA PROBATE LAW. ^5^-2 ence thereto;'" and if not exercised within the time and in the manner specified in the statute, the party entitled to exercise such right will be presumed to have accepted the provisions made for him or her by the will." The surviving wife, if she takes under the law, takes such in- terest as the statute gives her free from liability for her husband's debts, but if she elects to take in lieu of such interest, a provision made for her by such husband's will, she takes such provision subject to the payment of his debts. ^® '■ Bower v. Bowen, 139 Ind. 31, 38 X. E. 326. Where a testator died leav- ing a widow and six children, three sons and three daughters, devising forty acres of land to each of the sons, and his remaining land, seventy- seven 62-100 acres, to his widow for life, and to his daughters after her death, and such widow elected to take under the law, she thereby became en- titled to one-third of such land in fee- simple, and two-thirds of the seventy- seven 62-100 acres, during the life of said widow, descended to the children of such testator. The widow's elec- tion to take under the law was a re- jection of a life-estate, under the will, and consequently no disposition was made of such estate, and hence the same descended to the heirs of said testator. Hauk v. McComas, 98 Ind. 460. ^ Fosher v. Guilliams, 120 Ind. 172, 22 N. E. 118; Hurley v. Mclver. 119 Ind. 53, 21 N. E. 325 ; Clark v. Clark, 132 Ind. 25. 31 N. E. 461 ; Bower v. Bowen, 139 Ind. 31, 38 N. R 326 ; Huff- man v. Copeland, 139 Ind. 221, 38 X. E. 861. The change in the rule of elec- tion — requiring the widow to take un- der the will, unless she chooses, in legal manner, to take under the law — does not create a presumption against intestacy and in favor of testacy, but the presumption of intestacy still ob- tains. McClanahan v. Williams 136 Ind. 30, 35 X. E. 897. A will pro- vided that the testator's wife should "have the sole control, use and bene- fit" of his estate, for the support and maintenance of herself and their child, so long as she remained the testator's widow. There was no further dispo- sition of the property. The widow ac- cepted the provisions of the will, but sub.^equently remarried. Held, that the will conferred upon the widow no separate or individual estate in the property, but created a trust to con- tinue during her widowhood only. Held, that as the will made no dispo- sition of the property beyond the cre- ation of a trust for a limited time, what remained at the expiration of the trust descends under the law govern- ing the estates of persons dying intes- tate. Held, that as the widow's ac- ceptance of the terms of the will was not inconsistent with her contingent estate under the law, it did not oper- ate as a relinquishment of her inter- est, and she and the child took equally. Beshore v. Lytle, 114 Ind. 8, 16 X. E. 499. '■'Kayser v. Hodopp, 116 Ind. 428, 19 X. E. 297. §5^3 CONSTRUCTION OF WILLS. 931 ^ 523. When devise passes fee simple. — Technical words of inheritance are not necessary in a will to pass a fee simple, but still to give a fee something more than a mere devise of the land is necessary. A life estate only will pass by a general devise un- less it affirmatively appears from the will that the testator in- tended to convey a greater estate.'^® This is the rule at common law, and it is said : "There is no statute in this state changing the rules of the common law as to the language necessary to be used in a will in order to vest a fee in land, but it is well settled that it is not necessar}^ for that purpose, to use the word 'heirs.' Any other word, or words, denoting an intention of the testator to pass his whole interest to the devisee, such as a devise of all my estate, all my interest, all my property, my whole remainder, all I am worth or own, all my right, all my title, or all I shall die pos- sessed of, and other expressions of like import, will convey an estate of inheritance, if there is nothing to limit or control the operation of such words or expressions. "®° •^Doe V. Harter, 7 Blackf. (Ind.) 488; Pattison v. Doe, 7 Ind. 282; Cleveland v. Spilman, 25 Ind. 95 ; Roy V. Rowe, 90 Ind. 54; Fowler v. Duhme, 143 Ind. 248, 42 N. E. 623. A will containing the following : "I give to my beloved wife, S. D., and to one heir, S. A. D., all my estate, both real and personal, in their own right, with full power to sell and convey the whole or any part thereof, for the payment of debts, or otherwise, as they shall think proper." Held, that under the statute of 1843 respecting wills by which the will was governed, the devisees were given a fee-simple in the lands devised. Chase v. Salis- bury, 7i Ind. 506. Where all the fee of a wife's estate is devised by her to a trustee with the power of manage- ment and disposition, and a life-estate in part of it is carved out for her hus- band, with the remainder in fee vested in the trustee, the husband takes no greater estate under the will than that carved out for him. Such a devise to the husband shows an intention on the part of the testatrix to make the tes- tamentary provision take the place of the provision made by law. Wright V. Jones, 105 Ind. 17, 4 N. E. 281. A will read as follows : "I give and be- queath to my beloved wife, Elizabeth Xeidigh, all my personal property, both real and personal, excepting a sufficient sum to pay my just debts and funeral expenses." Held, that the widow took the fee-simple title to the land. Morgan v. McNeeley, 126 Ind. 537, 26 N. E. 395. ^Ross V. Ross, 135 Ind. 367, 35 X. E. 9; Smith v. Meiser, 51 Ind. 419; Lennen v. Craig, 95 Ind. 167 ; Chase v. Salisbury, 7Z Ind. 506; Biggs v. Mc- Carty, 86 Ind. 352, 44 Am. Rep. 320; Millett V. Ford, 109 Ind. 159, 8 N. E. 917; Morgan v. McNeeley, 126 Ind. 537, 26 N. E. 395; Schouler Wills, § 550; Wiley v. Gregory, 135 Ind. 647, 35 N. E. 507. 932 INDIANA PROBATE LAW. § 523 In applying the foregoing rule of construction heed must also be had to that other rule which requires an avoidance of a con- struction that will result in a partial intestacy. As is said in one case: "The purpose and object of making a will is to dispose of one's estate. The presumi)tion is that when one forms an inten- tion to make a will, he intends to dispose of all his estate; hence the rule that in construing a will it will not be so construed as to create a partial intestacy, unless the language used compels such a construction. With like force and reason, and within a proper application of this rule, when the testator has expressed a clear intention to give an article of personal property, or a tract of real estate, to a designated person, and tliere are no limitations as to title, or expressed intention to give another any interest in, or title to, the same article of personal property, or real estate, the will should be so construed as to pass to the donee, or devisee, the same interest, or title, held by the testator. It is not fair to pre- sume that when a testator says in express terms that he gives, be- queaths, or devises property, real or personal, without limiting the interest or title, or making any other disposition of, or reference to it, his intention was to give to the person named as donee, or devisee, the same right and title to the property as he himself held ; in other words that he intends to dispose of all the interest and title he has in it.""^ Where an estate in fee is created in clear and decisive terms, a restriction upon the right of alienation is of no effect. There may be a partial restriction, but there cannot be a general one.®^ An estate may be devised for life with full power to convey the fee." ^^ Mills V. Franklin, 128 Ind. 444, 28 ^' South v. South, 91 Ind. 221, 46 N. E. 60. See Burns' R. S. 1908, § Am. Rep. 591; Downie v. Buennagel, 3123. 94 Ind. 228; John v. Bradbury. 97 Ind. *" Allen V. Craft, 109 Ind. 476, 9 N. 263 ; Silvers v. Canary, 109 Ind. 267, 9 E. 919, 58 Am. Rep. 425; M'Williams X. E. 904; Jenkins v. Compton, 123 V. Nisly, 2 S. & R. (Pa.) 507, 7 Am. Ind. 117, 23 N. E. 1091; Levengood v. Dec. 654; Mandlebaum v. McDonell, Hoople, 124 Ind. 27, 24 N. E. 373; 29 Mich. 78, 18 Am. Rep. 61 ; DePey- Wiley v. Gregory, 135 Ind. 647, 35 N. ster V. Michael, 6 N. Y. 467, 57 Am. E. 507. Where a will gives and be- Dec. 470n ; Fowler v. Duhme, 143 Ind. queaths to the wife of the testator "all 248, 42 N. E. 623. the property, money and effects" be- 523 CONSTRUCTION OF WILLS. 933 An absolute devise in terms must be construed in connection with other clauses of the will which serve to modify its effect, and a fee which is given in one part of the will may be so re- strained by subsequent words as to reduce it to a life estate. ^^ The old rule of the common law that a devise of real estate longing to the testator, "to dispose of at her own discretion, and if she see cause to sell the real estate I hereby authorize her to do so, to make, exe- cute a deed without order of court," and provides that after the death of the wife the remaining property shall be divided between testator's daugh- ters, the widow has power to convey the fee of testator's land. McMillan v. Deering, 139 Ind. 70, 38 N. E. 398. A life-estate was created where the tes- tator gave to his wife all his property, principally real estate, to "be hers with- out any interference from anybody for the space of her lifetime. It shall be hers in the full sense of ownership, even so far that she is empowered to sell, mortgage, or divide the same. * * * But this shall not be so understood as that my said wife has the right to di- vide the property herein named among persons not kindred to me, to the disadvantage of our children, but they shall, after her death, divide the estate among them equally." Bowser v. Mattler, 137 Ind. 649, 35 N. E. 701, 36 N. E. 714. A devise, "He shall have the rents and profits arising from my interest in said property for his own use and support, but no part thereof shall be subject to payment of his debts, and he shall not encumber the same," creates a life-estate with- out a trust, and is subject to levy and sale for payment of his debts. Thomp- son V. Murphy, 10 Ind. App. 464, 2)1 X. E. 1094. A testator devised all his real estate to his wife "for and during the time of her natural life," with di- rections to her to conduct the farming operations thereon in the same man- ner as the testator would do if he were still living, with a view to keep- ing their children "together at home so long as they may be under the age of twenty-one years, and may desire to remain," with a gift to her of all the interest on his money, and other annual profits of his "estate for her maintenance and the support" of their family "so long as she shall live;" and provided that at her death all his realty and personalty remaining should be divided among their children, share and share alike; and also provided that, in order to pay debts, costs of administration, or for the payment of any sum given by the will, the execu- tors could sell and convey at any time, without an order of court, on such terms as they saw fit, any of the real or personal property of the testator, except the home farm, unless in case of the most absolute necessity. Held, that the will vested in the wife a life- estate in the land and the fee in the children, subject to be divested only in case a sale became necessary to pay debts, costs of administration, or any sum provided by the will to be paid. Neely v. Boyce, 128 Ind. 1, 27 X. E. 169. "Kunz V. Puster, 130 Ind. 277, 29 X. E. 1055 ; Giles v. Little, 104 U. S. 291, 26 L. ed. 745; Patty v. Goolsby, 51 Ark. 61, 9 S. W. 846; Eubank v. Smiley, 130 Ind. 393, 29 X. E. 919; Xeely v. Boyce, 128 Ind. 1, 27 X. E. 169 ; Schouler Wills, § 559. 934 INDIANA PROBATE LAW, ^ 524 which is in general terms and which does not define the interest to be taken by the devisee passes only a life estate is modified by section 3123, Burns' R. S. 1908, which establishes a rule of con- struction. And while the statute ; 524. Vested estates — Remainders. — 7"he principle is well established that the law favors the vesting of estates, and courts will endeavor to so construe a will as to create a vested estate if possible. It will also be presumed, in favor of such principle, that words in a will which api)ear to postpone the estate, relate to the enjoyment of the remainder and not to the vesting of the estate.*' The law not only favors the vesting of estates, but remainders will never be held to be contingent when they can be held to be vested consistently with the apparent intention of the testator.*"* " Korf V. Goriclis, 145 Ind. 134. 44 ^' Borgncr v. Brown, 133 Ind. 391, N. E. 24; Skinner v. Spann, — Ind. 33 N. E. 92; Hcilman v. Heilman. 129 — . 95 N. E. 243. Ind. 59, 28 X. E. 310; Harris v. Car- ^Mulvane v. Rude. 146 Ind. 476, 45 penter, 109 Ind. 540, 10 N. E. 422; N. E. 659; McMillan v. Deering, 139 Amos v. Amos, 117 Ind. 37, 19 N. E. Ind. 70, 38 X. E. 398 ; Hammond v. 543 ; Davidson v. Koehler, 76 Ind. 398 ; Croxton, 162 Ind. 353, 69 X. E. 250, 70 Davidson v. Bates. Ill Ind. 391, 12 X. N. E. 368; Eddy v. Cross. 26 Ind. E. 687; Davidson v. Hutchins, 112 App. 643, 60 N. E. 470; Cain v. Rob- Ind. 322. 13 X. E. 106; Hoover v. ertson, 27 Ind. App. 198, 61 X. E. 26; Hoover, 116 Ind. 498. 19 X. E. 468; Cross V. Hendry, 39 Ind. App. 246, 79 Wright v. Charley, 129 Ind. 257. 28 X. N. E. 531 ; Foudray v. Foudray, 44 E. 706. Ind. App. 444, 89 N. E. 499. '" Boling v. Miller, 133 Ind. 602, 33 '^ Fowler v. Duhme. 143 Ind. 248. 42 X. E. 354; Curry v. Bratney. 29 Ind. N. E. 623; Hayes v. Martz, 45 Ind. 195; Davidson v. Bates, 111 Ind. 391. App. 704, 84 N. E. 546; 87 N. E. 837. 12 X. E. 687; Harris v. Carpenter, 109 524 CONSTRUCTION OF WILLS. 935 The intention to postpone the vesting of the estate must be clear and manifest, and must not exist by mere inference or construc- tion.^'' Land may be devised to a person in fee, to be divested on the failure of certain conditions, and then to vest in other persons.^^ Ind. 540, 10 N. E. 422. Where a de- vise of land is to a widow during her natural life, and at her death to the son of the testator, if he be living, and if he be dead then to his widow until her death or marriage, and at her death or marriage then to his heirs, and, if there be no heirs living to the heirs of the testator, the words of survivorship relate to the death of the testator, and the son takes an es- tate in fee-simple in remainder, which vests immediately upon the death of the father, but which he can only en- joy in possession after the termina- tion of the life-estate of his mother. Upon a conveyance of the life-estate to the son by the mother, the former would become entitled to possession of the land. Hoover v. Hoover, 116 Ind. 498, 19 N. E. 468. Where a life- estate is given to the widow by will, the fact that the will gives to the widow the unrestricted use of the per- sonal property during life, and, with others, a power of disposition of the real estate, thus making it uncertain what property will remain to distri- bute at her death to the remainder- man, does not render the remainder contingent. Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310. "Bruce v. Bissell, 119 Ind. 525, 22 N. E. 4, 12 Am. St. 436; Corey v. Springer, 138 Ind. 506, 11. N. E. 322 ; Heilman v. Heilman, 129 Ind. 59, 28 X. E. 310; Miller v. Keegan, 14 Ind. 502; Borgner v. Brown, 133 Ind. 391, Zl X. E. 92. The will of the testator, after mentioning the disposition of certain property during his lifetime, devised to his wife all of his other property, to be held and used bj' her during her natural life. The will also provided, as to certain notes, that she was to collect the same, with the priv- ilege to use so much thereof as she might deem necessary to carry on her business, &c. The will further pro- vided: "But before her (the wife's) death, I desire her to provide by will, or otherwise, for a distribution of whatever of my estate may remain in her hands among her and my children in such manner as she, in her judg- ment, shall deem best and most equit- able ; such distribution not to take ef- fect until after her death." Held, that when a will limits the estate of the tirst taker to life, the devisee cannot take a fee, although he may be in- vested with a power to appoint those who shall take that estate. Held, also, that under the will as to the personal property a right was vested in the widow to use such of it as she chose, and to distribute what remained at her death, at her pleasure, among the members of the class designated by the testator. Held, also, that as to the real estate the fee was not in the widow at any time, and she could not devise the same, and that the remain- der was vested in the heirs at the date of the testator's death. Crew v. Dix- on, 129 Ind. 85, 27 N. E. 728. "' Boling V. Miller, 133 Ind. 602, ZZ X. E. 354; Jones v. Miller, 13 Ind. Zll; Clark v. Barton, 51 Ind. 165; Pate V. French, 122 Ind. 10, 23 N. E. 936 IXDIAXA PROBATE LAW. §5^4 The rule is also well established that where a bequest is simply to one person, and, in case of his death, to another, if the first devisee survives the testator, he takes the estate absolutely. The words are held to refer to a death during the lifetime of the testator. **- It is a rule of law that estates shall be held to vest at the earliest possible period. The law looks with disfavor upon the postpone- ment of estates and the intent to postpone must be clear and manifest, and must not arise by mere inference or construction."' It is another established principle that the law favors the vesting of remainders absolutely rather than contingently, and at the earliest possible period, and presumes that words of postponement relate to the enjoyment and not to the vesting of the estate."* A remainder which once becomes vested cannot be destroyed by a subsequent event."' 0/3; Lougheed v. Dykeman's Baptist Church, 129 X. Y. 211, 29 N. E. 249, 14 L. R. A. 410n. Where there is no other gift contained in the will than the direction to pay, distribute or di- vide the estate in the future, yet, if such payment, distribution or division appear to be postponed for the con- venience of the estate, fund or prop- erty, which embraces a life-estate to another, the estate will be vested and not contingent. Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310. "= Wright v. Charley 129 Ind. 257, 28 N. E. 706; Borgner v. Brown, 133 Ind. 391, 33 N. E. 92; Corey v. Spring- er, 138 Ind. 506, 37 N. E. 322 ; Steven- son v. Fo.x, 125 Pa. St. 568, 17 Atl. 480. 11 Am. St. 922; Kelly v. Kelly, 61 X. Y. 47 ; Whitney v. Whitney, 45 N. H. 311; 2 Jar. Wills, 752. Where, by the will of her father, a daughter is given land in fee-simple, subject only to the contingency that she should die without issue surviving, or that her surviving issue should die before ar- riving at full age, the estate taken was a determinable fee, and upon her death leaving issue, her husband succeeded to an undivided one-third in fee, sub- ject only to the same contingency, and such third was subject to sale on judgments rendered against him. Greer v. Wilson, 108 Ind. 322, 9 X. E. 284. " Aspy v. Lewis, 152 Ind. 493, 52 X, E. 756; Doe v. Considine, 6 Wall. (U. S.) 458; Fowler v. Duhme, 143 Ind. 248, 42 X. E. 623. "Myers v. Carney, 171 Ind. 379, 86 X. E. 400; Taylor v. Stephens, 165 Ind. 200, 74 X. E. 980; Clore v. Smith, 45 Ind. App. 340, 90 X. E. 917; IMoores v. Hare, 144 Ind. 573, 43 X. E. 870. "^ Crew V. Dixon, 129 Ind. 85, 27 X. E. 728. The law favors vested estates, and remainders will never be held to be contingent when they can, consist- ently with the intention of the testa- tor, be held to be vested. Davidson V. Koehler, 76 Ind. 398; Davidson v. Bates, 111 Ind. 391, 12 X. E. 687; Amos V. Amos, 117 Ind. 37, 19 X. E. 524 COXSTRUCTIOX OF WILLS. 937 Another rule is that where real estate is devised in terms de- noting an intention on the part of the testator that the primary devisee shall take a fee at the testator's death, with a devise over, in case of the death of the first devisee without issue such words refer to a death without issue in the lifetime of the testator, and if the primary devisee survive the testator he will take an abso- lute estate in fee simple.'*^ When not inconsistent with the inten- tions of the testator, the will should be so construed as to prevent the title to real estate from remaining contingent, or resting in abeyance.^' This test as to whether an estate is vested or contingent is given: "The right and capacity of the remainderman to take possession of the estate, if the possession were to become vacant, and the certainty that the event upon which the vacancy depends, must happen some time, and not the certainty that it will happen in the lifetime of the remainderman, determine whether or not the estate is vested or contingent. ""' It is the uncertainty of the right that renders an estate contingent and not the uncertainty of the enjoyment.^® The law will not construe a limitation in a will into an execu- 543; Bruce v. Bissell, 119 Ind. 525, 22 mainder in fee. Harris v. Carpenter, N. E. 4, 12 Am. St. 436; Boling v. Mil- 109 Ind. 540, 10 N. E. 422. let, 133 Ind. 602, 33 N. E. 354; Maris "'Wright v. Charley, 129 Ind. 257, V Wolfe, 46 Ind. App. 416, 92 N. E. 28 X. E. 706; Quackenboss v. Kings- 661. Survivorship is generally, in the land, 102 N. Y. 128, 6 N. E. 121, 55 absence of an expressed or fairly im- Am. Rep. 771n ; Mickley's Appeal, 92 plied intention to the contrary, con- Pa. St. 514; Doe v. Sparrow, 13 East. strued to refer to the testator's death. 359. Hoover v. Hoover, 116 Ind. 498, 19 X. '■" Heilman v. Heilman, 129 Ind. 59, E. 468; Heilman v. Heilman, 129 Ind. 28 X. E. 310; Wright v. Charley, 129 59, 28 X. E. 310; Wright v. Charley, Ind. 257, 28 N. E. 706. 129 Ind. 257, 28 X. E. 706. A testator ''Bruce v. Bissell, 119 Ind. 525, 22 devised certain land to his wife for X. E. 4, 12 Am. St. 436; Corey v. life, providing that "at her death the Springer, 138 Ind. 506, 37 N. E. 322; same shall be the property of and pass Cro.xall v. Shererd, 5 Wall. (U. S.) to my daughter L., in fee; but if she, 268, 18 L. ed. 572; Tiedeman Real said L., be not living, then to her heirs Property, § 401. forever." Held, that the survivorship * Wood v. Robertson, 113 Ind. 323, referred to the testator's death, and 15 X. E. 457; Corey v. Springer, 138 that the daughter took a vested re- Ind. 506, 37 X. E. 322. 93^ INDIANA PROBATE LAW . § 524 tory devise when it can take effect as a remainder, nor a remain- der contingent when it can be construed to be vested.' Xo estate will be held contingent unless very decisive words of contingency are used in the will, or it is necessary to hold the same contingent in order to carry out the other provisions and implications of the will.' And if there is any doubt arises in construing a will as to the point of time when the estate shall vest, the earliest possible time, consistent with the will, will be fixed.' ' Doe V. Considine, 6 Wall. (U. S.) ' .\fcCarty v. Fish, 87 Mich. 48; Co- 458, 37 N. E. 322, 18 L. ed. 869; .Amos rev v. Springer, 138 Iiul. 506 37 X E V. Amos. 117 Iml. 37, 19 X. E. 543: 322; Wood v. Robertson, 113 Ind. 323. Hcilman v. Heilnian. 129 Ind. 59. 2S 15 X. E. 457. N. E. 310; Corey V. Springer. 138 Iii.I. 'Miller v. Keegan. 14 Ind. 502; 506. 37 X. E. 322 Mack v. Mulcahy. 47 In.l. emiitted to contest." One who has resisted the probate of a will has had his day in court and cannot afterwards contest such will under the other statute.** Purchasers of land from a devisee under a will duly probated are necessar\^ parties in an action to contest such will."' construed to mean that any person, from the devisee under the 'probated being a party in interest, may contest will are proper parties defendant. the validity of any will, * * * the Roberts v. Abbott, 127 Ind. 83, 26 N. complaint must show the plaintiff to E. 565. have an interest of some kind in the * Burns' R. S. 1908, § 261. subject matter involved in the con- "Harrison v. Stanton, 146 Ind. 366, test." Crawfordsville Trust Co. v. 45 N. E. 582; Morell v. Morell, 157 Ramsey, — Ind. — , 98 N. E. 177. Ind. 179, 60 N. E. 1092. ' Scott V. Farman, 89 Ind. 580. 'Duckworth v. Hibbs, 38 Ind. 78; * McElf resh v. Guard, 32 Ind. 408. Morell v. Morell, 157 Ind. 179, 60 X. 'Harris v. Harris, 61 Ind. 117. In E. 1092. an action to set aside a will admitted " Roberts v. .Abbott, 127 Ind. 83, 26 to probate, and to establish and pro- N. E. 565. bate a lost will, purchasers of land 526 CONTEST OF WILLS. 94^ A guardian of an infant cannot sue to contest a will. In such case the infant must sue by next friend.^" Devisees or legatees under a lost will may contest the validity of another will which attempts to dispose of the same property ; and where the will gives to an heir the precise portion he would take as heir such person takes by descent and not under the wil and has no such interest in the will as to give a right to contest it. § 526 Where contested.— The statute provides that "an action to establish or set aside a will must be brought m the county in which the will, if valid, ought, according to law to be proved and recorded."^=^ And as has been shown proof ot a will must be made in the county of which the testator was an inhabitant immediately previous to his death, or if he was not an inhabitant of this state, at the time of his death, in the county where he left assets, or into which assets of his may have come All actions in this state to contest the validity, and to resist or^set aside the probate of an alleged last will, are purely stat- utorv and will be governed in relation to the time, the forum and 'the grounds of contest, by the statute which authorizes such action. Such action must be brought in the circuit court of the county in which the testator resided immediately previous to his death; or if he was not an inhabitant of the state at the date of his death, then in some county in this state m which he left assets, or into which assets of his might thereafter come. -Campbellv. Fichter, 168Ind. 645, have come into such county ; yet «i V F ^61 ^^here the court is one of general jur- -McDonald v. McDonald, 142 Ind. isdiction, as is the circuit court the ,, 41 V F 336 facts giving it jurisdiction of the sub- "Thompson v. Turner, 173 Ind. ject-matter need not affirmatively ap- ^o/rQ N E 314 P^a^ "^ the complaint, but the juris- ''Burns' R. S. 1908, § 312. To give diction will be presumed unless the a court jurisdiction of a proceeding to contrary appears. Lee v. Templeton, contest the validity of a will, the tes- 73 Ind. 315_ tator must have died in the county "Burns R- S^ 1908, § 3136, Harns where the contest is made, or must v. Harris, 61 Ind. 117. have left assets there, or assets must 942 INDIANA PROBATE LAW. § 527 These are held to be jurisdictional facts, and the niles of good pleading require that one or more of them be alleged in the com- plaint filed in such action."* But as the circuit court is a court of general jurisdiction, the facts giving it jurisdiction need not affirmatively appear on the face of the complaint, for unless the contrary appears, jurisdic- tion will be presumed.^" So where a complaint is filed in a circuit court in any county of this state and the court should proceed to hear and dctemiine the cause, it will be presumed in the absence of any showing to the contrary, that the court found, either that the testator died in the county in which the suit was brought, or that some part of his estate was situated therein. ^^ The various acts establishing superior courts in several counties of the state, confer upon such courts jurisdiction, concurrent with the circuit courts, in cases where a will is contested after its pro- bate. >; 527. Contest of a will after its probate. — The statute pro- vides that any person may contest the validity of any will, or resist the probate thereof, at any time within three years after the same has been offered for probate, by filing in the circuit court of the county where the testator died, or where any part of his estate is, his allegation in writing, verified by his affidavit, setting forth the unsoundness of mind of the testator, the undue execution of the will, that the same was executed under duress, or was obtained by fraud, or any otlier valid objection to its validity or the pro- "Harris v. Harris, 61 Ind. 117; facts which give it jurisdiction of the Thomas v. Wood, 61 Ind. 132; Suth- subject of the action need not affirm- erland v. Hankins, 56 Ind. 343. atively appear on the face of the com- '* Lee V. Tenipleton. 73 Ind. 315. In plaint. It will be presumed, unless Kinnaman v. Kinnaman, 71 Ind. 417, the contrary appear. * * * For if it the court says : "Doubtless if a com- were essential that the facts giving plaint should show affirmatively that the court jurisdiction should affirma- the court had no jurisdiction of the tively appear on the face of the com- subject of the action, it would not be plaint, the evidence could not aid the error to dismiss the proceedings. But defect." where the court is one of general ju- " Whittenberger v. Bower, 158 Ind. risdiction, like the circuit court, the 673, 63 N. E. 307. § ^27 CONTEST OF WILLS. 943 bate thereof; and the executor and all other persons beneficially interested therein shall be made defendants thereto.'^ Such action must be commenced within three years after the alleged will has been offered for probate. But infants and persons absent from the state or of unsound mind shall have two years after their disabilities are removed to contest the validity or due execution of such will;'' and if it appears from the complaint that the action has not been begun within three years after the will has been offered for probate, a demurrer will lie for the want of sufficient facts. -° An examination of the above statute discloses two causes for which a will may be attacked, viz. : the unsoundness of the testa- tor's mind ; the undue execution of the will ; that the same was executed under duress, or by some fraudulent means. Under the first head are to be classed every species of mental unsoundness that would render a party incompetent, while all objections to the validity of the will are to be classed under the head of "undue execution." Duress and fraud are not to be regarded as addi- tional causes of contest, but as examples of undue execution.-' A will, if unduly executed, may be avoided, and the phrase >« Burns' R. S. 1908, § 3154. Only Deig v. Morehead, 110 Ind. 451, 11 N. parties in interest can contest the va- E. 458. Parties contesting the validity lidity of a will. Neiderhaus v. Heldt, of a will by resisting its probate can- 27 Ind. 480 ; Schmidt v. Bomersbach, not again contest the same under this 64 Ind. 53. If the objections filed by section. Duckworth v. Hibbs, 38 Ind. the contestant do not show any inter- 78. est on his part, the defect may be " Burns" R. S. 1908, § 3159. Cornell cured by the evidence when the con- v. Goodrich, 21 Ind. 179. testee does not object before verdict. " Potts v. Felton, 70 Ind. 166. The McElfresh v. Guard, 32 Ind. 408. If a amendment of the complaint by mak- jury is called without objection, and ing new parties after the three years interrogatories are submitted to the have expired will not bar the action jury and answered, and the court dis- when the original complaint was filed regards such answers and makes a in time. Floyd v. Floyd, 90 Ind. 130. findincr and renders judgment there- ^'^ Kenworthy v. Williams, 5 Ind. on, there is no available error. Kite 375; Reed v. Watson, 27 Ind. 443; V. Sims, 94 Ind. 333. Parties have a Bowman v. Phillips, 47 Ind. 341 ; right to' a trial by jury in proceedings Lange v. Dammier, 119 Ind. 567, 21 to contest the validity of a will. Lamb N. E. 749. v.. Lamb, 105 Ind. 456, 5 N. E. 171; 944 INDIANA PROBATE LAW. § 527 "undue execution" has been held to inckide every species of duress, fraud, coercion, infancy, revocation, and any other vahd objection to the execution of the will, and proof of either ur all of these may be made under the general allegation of undue execution. -- Fair and reasonable influence exerted upon a person by means of argument and persuasion to secure the execution of a will does not invalidate such will. To invalidate the will the inlluence used must be such as amounts to force and destroys the free agency of the testator."* And an influence which may be lawfully exercised by the wife of a testator may become unlawful when it is exercised by a woman with whom he is living in adultery.*^ Section 3154, Burns' R. S. 1908, was amended by the legisla- ture in 1911, by adding to it the following provisos: "Provided, That where the state of Indiana or any officer or department thereof on its behalf is made a beneficiar)' under the terms of such will, the state of Indiana, any such officer or department of said state may be made a party defendant in said action and sued therein, the same as an individual, and in such case the contestor "• Willett V. Porter, 42 Ind. 250; No- and proper conduct on the part of the ble V. Enos, 19 Ind. 12; Bradford v. devisee. Goodbar v. Lidikey, 136 Ind. Bradford, 59 Ind. 434; Kcssinger v. 1, 35 X. E. 691. In the contest of a Kessinger, il Ind. 341 ; Vance v. will, evidence of conversation with a Vance, 74 Ind. 370. The influence ex- legatee (a daughter) who was alleged ercised to procure the execution of a to have e.xerted undue influence, will which will render the will invalid showing her desire that a will be ex- must be such as in some degree de- ecuted, or making predictions as to its stroys the free agency of the testator, contents, not realized, or containing and induces him to do what is against her statement that but for her no will his will. Rabb v. Graham, 43 Ind. 1. would have been made, had no ten- Undue influence, destroying free dency to show undue influence, and agenc\', when a will is made, vitiates might be excluded, the will, though the devisee may have ^ Bundy v. McPCnight, 48 Ind. 502 ; no agency in procuring its exercise Vanvalkenberg v. Vanvalkenberg, 90 and no knowledge of the fact. Van- Ind. 433. valkenberg v. Vanvalkenberg, 90 Ind. "' Kessinger v. Kessinger, Zl Ind. 433. Undue influence is not proved 341. In this case it is said : "We are by disclosing relations of friendship of opinion that there is a difference in and affection between the testator and the two cases, and that an influence devisee, nor by showing kindly offices when exercised by a wife might be § 528 CONTEST OF WILLS. 945 shall cause a summons in such action to be issued against the state of Indiana and served upon the governor of the state as such governor and it shall be the duty of the attorney-general of the state of Indiana to appear and defend such action on behalf of the state for the purpose of protecting the interest of the state in said will : Provided, however, That in all actions where the state of Indiana or any officer of said state, or department thereof is made a party defendant, said action shall be brought in the su- perior court of "Marion county, Indiana, and said court shall have jurisdiction to try and determine all rights and interests of all parties interested in or connected (with) said action. A certified copy of the judgment in said cause shall be filed in the office of the clerk of the county where such will was probated, or offered for probate.''"^ These provisos were added by the legislature to fit a case which arose in Grant county, but as the action of the testator in that case is not likely to become contagious this amendment is of little general importance. § 528. As to undue influence. — Undue influence, in order to make a will void, must be directly connected with its execution and must operate at the time the will is made.^® The question of undue influence is one of fact and must be determined by the jury from all the circumstances of the case."' The averment in a complaint ''that said will was unduly exe- cuted" is sufficient as against a demurrer and will admit proof of lawful and legitimate, but which, if ing 1 Redfield Wills, pp. 531-2-3; e.xercised by a woman occupying Dean v. Xegley, 41 Pa. St. 312, 80 merely an adulterous relation to the Am. Dec. 620; Monroe v. Barclay, 17 testator, might be undue and illegiti- Ohio St. 302, 93 Am. Dec. 620; Dela- mate. This must be so from the very field v. Parish, 25 N. Y. 9. nature of civilized human society, and *Acts 1911, p. 325. the domestic relations of life. With- ^ Ditton v. Hart, — Ind. — , 93 N. out entering upon any general discus- E. 961 ; Floto v. Floto, 233 111. 605, 84 sion of the question, w-e content our- X. E. 712. selves with a reference to the authori- " Friedersdorf v. Lacy, 173 Ind. 429, ties which support this view-,"' and cit- 90 X. E. 766. 60— Pro. Law. 946 INDIANA PROBATE LAW. g =^8 fraud, undue iutlucuce or any other sufficient cause as against its due execution.-" Undue influence is defined "as that which comi>els the testator to do that which is against his will, through fear, or the desire of peace, or some feeling which he is unable to resist, and but for which the will would not have been made as it was.''^'" The circumstance that the influence gained by one person over another was very great cannot be treated as undue if the person influenced had free opix)rtunity and strength of mind sufficient to select what influences should guide him, and was in the full sense legally and morally a responsible being.'" Unfree agency in a case of undue influence is simply this: The apparent testator is but the instrument by which the mastering desire of another is expressed ; the supposed will, or the particular part in question, is not the Avill of the testator except in the sense that he has consented to put his name to the instrument in the form in which it ap|)ears. Yielding to influence is of course consistent with free agency, and agency is free in the eyes of the law however much the agent is influenced by other men until the influence amounts to a domina- tion of the will. Persuasion and argument are not improi)er so long as they do not overcome free agencv."' Undue influence is a relative term, but must always be taken in the concrete, since the influence that is claimed to be undue must have a correlative in the mental condition of the person who at- tempts to execute the will, yet it must be remembered that the influence that the law denominates as undue must take away the supposed testator's free agency in the particular instance." Influences that may be legitimately used to induce a person to make a will must be fair and reasonable. If they amount to persuasions, importunities, force, threats, or coercion of such ^ Wenning v. Teeple. 144 Ind. 189, "'' Stevens v. Leonard. 154 Ind. 67. 41 X. E. 600. 56 \. E. 21, 77 Am. St. 446n ; Young =*Redfield Wills, p. 530: 27 \m. & v. Montgomer>% 161 Ind. 68, 67 X. E. Eng. Encyc. Law. 495. 684: Stamets v. Mitchenor. 165 Ind. " Schouler Wills. § 227. 672. 75 X. E. 579. "1 Jarman Wills (Xote), p. 66; Dale's Appeal, 57 Conn. 127. § 529 CONTEST OF WILLS. 947 a character and degree that the testator cannot resist them, they become unlaw ful.^^ The relations existing between the testator and his family may be shown as bearing upon the question of undue influence.^* § 529. As to unsoundness of mind. — Testamentary capac- ity is presumed in favor of a testator, and ever>- person is held to be of sound mind until the contran,- is proven, yet it is only necessan,- that a testator, at the time of making his will, should be of such sound mind and memor\- as to enable him to know and understand the business in hand and the purpose for which the will is being made. And while the phrase, "unsound mind," in- cludes every species of unsoundness of mind, it is not necessary that the testator should be in full possession of all his faculties.^^ Testamentary- capacity is consistent, especially with ver>- aged persons, with a great degree of mental infirmity, and some degree of mental perversion or aberration, at times, provided there is satisfactory proof that the testator, at the time of the execution of his will, really did comprehend its import and scope, and was not under the control of any improper or undue influence or of any deception or delusion. ^^ " Bundy v. McKnight. 48 Ind. 502 : "• Burkhart v. Gladish. 123 Ind. 337, Vanvalkcnberg v. Vanvalkenberg, 90 24 X. E. 118; Durham v. Smith. 120 Ind. 433; Rabb v. Graham, 43 Ind. 1 ; Ind. 463, 22 X. E. 333; Kenworthy v. Todd V. Fenton, 66 Ind. 25. Williams, 5 Ind. 375 ; Willett v. Por- ** Staser v. Hogan, 120 Ind. 207, 21 ter. 42 Ind. 250; Leach v. Prebster, 39 X. E. 911, 22 X. E. 990. The court Ind. 492; Bundy v. McKnight, 48 Ind. says: "The appellees were permitted 502; Runkle v. Gates, 11 Ind. 95; to prove by Mrs. Yeager. who is the Rush v. Megee. 36 Ind. 69. Ante, § stepmother of three of the testator's 468. grandchildren, who were disinherited " Moore v. Moore, 2 Bradf. (N. by the will in controversy, that the Y.) 261; Bundy v. McKnight, 48 Ind. deceased always greeted and treated 502. In an action contesting the va- her as nicely as any one could treat a lidity of a will, alleging unsoundness daughter. Under the issues in this of mind, testimony relating to the cause it was not improper to prove acts, conduct and language of the tes- the relations that existed between the tatrix, in court, prior to her death, is testator and his family, that is, admissible as bearing upon the ques- whether they were friendly or other- tion of sanity. In such case, the fact wise. We do not think the court that the testatri.x disinherited her only erred in admitting this testimony." child, that he was needy and with a 94^ INDIANA TROBATE LAW. § 529 On the allegation of the unsoundness of mind of a testator the burden of proof is upon the plaintiff until the fact of such un- soundness has been established. Such unsoundness of mind must be shown to have existed at the time the will was made; but if it is established by evidence that the testator had been of unsuund mind at any time before the making of his will, the presumption then arises that he was of unsound mind at the time of making the will, and such presumption is only rebutted by proof, on the part of those defending the will, that at the time of its execution the testator had been wholly restored, or at that time had a lucid interval. ^^ A will cannot be imj^eached because of a moral injustice only. If the testator be of sound mind, he may, from caprice, causeless malice, or foolish prejudice, cut off his children and give his property to strangers, or give his property to some of his children to the exclusion of others. The moral injustice or caprice in such cases may be considered as a circumstance on the question of insanity, but if from the evidence it be clear that the testator was sane, the caprice or injustice is of no moment whatever. The testator, unless of unsound mind, must be allowed to make his own division and distribution of his property. joung family, are circumstances had no title, is admissible for the pur- which may be considered in determin- pose of showing the condition of ing the question of sanity, the reason- mind of the testator at the time he ableness of the will, the testatrix's executed his will, and for no other family connections, and her property, purpose. Goodbar v. Lidikey, 136 Ind. being proper subjects of inquirj'. Gur- 1, 35 X. E. 691. 43 Am. St. 296. For ley V. Park, 135 Ind. 440, 35 N. E. 279. the purpose of showing the mental On the question of a testator's men- condition of the testator, evidence tal condition when he executed the that the statements in the will that he will, evidence showing his state of had advanced the sums designated to mind the day before is admissible ; the parties named are erroneous, is and where the will in question was admissible. Lamb v. Lamb, 105 Ind. made to supply one executed on that 456, 5 N. E. 171. day, which had been lost, such evi- *^Rush v. Megee, 36 Ind. 69; Tur- dence was part of the res gestae. Dyer ner v. Cook, 36 Ind. 129; Ryman v. v. Dyer, 87 Ind. 13. In an action to Crawford, 86 Ind. 262; Dyer v. Dyer, set aside a will, alleging mental inca- 87 Ind. 13 ; Moore v. Allen, 5 Ind. pacity of the testator, involving no 521 ; Durham v. Smith, 120 Ind. 463, title to land, evidence that the testator 22 N. E. 333. devised land to which he, at the time. § 529 CONTEST OF WILLS. 949 In determining testamentary capacity the law takes cognizance of such delusions only as point to actual unsoundness of mind, what are known as insane delusions. An insane delusion is a spontaneous conception and acceptance of that as a fact which has no existence except in the imagination, and which is per- sistently believed in against all evidence and probability.^^ A testator may be sane upon all other subjects and yet afflicted with a delusion upon one which would amount to insanity as to that one.^^ A monomaniac is a person who is deranged in a single faculty of his mind, or with regard to a particular subject only. Mental incapacity is to be measured by its relation to the subject of the will. Delusions or monomania relating to subjects foreign to the will, and to the persons affected thereby, involve no more likelihood of actual incapacity than many other latent causes.^'' By our statute an idiot is classed as a person of unsound mind and therefore incapable of making a valid will, but in fact idiocy imports not mere mental aberration, or weakness of understand- ing, but a total deprivation of reason. Blackstone says "a man is not an idiot if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters."" He is a person wholly destitute of the reasoning faculty, unable to com- pare two ideas together, and utterly incapacitated for the transac- tion of any business.*^ But injustice and inequality in the disposition of his property by a testator are circumstances which may be taken into consid- eration in determining his mental capacity."*^ ^ Friedersdorf v. Lacy, 173 Ind. X. E. 271 ; Thompson v. Thompson, 429, 90 N. E. 766; McReynolds v. 21 Barb. (N. Y.) 107; Addington v, Smith, 172 Ind. 336, 86 N. E. 1009; Wilson, 5 Ind. 137, 61 Am. Dec. 81; Steinkuehler v. Wempner, 169 Ind. Otto v. Doty, 61 Iowa 23, IS N. W. 154, 81 N. E. 482, 15 L. R. A. (N. S.) 578; Swygert v. Willard, 166 Ind. 25, 673n; Page Wills, §§ 104-107. 76 N. E. 755. "Teegarden v. Lewis, 145 Ind. 98, -"M Black. Comm. 304. 40 N. E. 1047, 44 N. E. 9 ; Wray v. "^ Ray Med. Jur., § 60. Bannatyne v. Wray, 32 Ind. 126 ; Blough v. Parry, Bannatyne, 14 Eng. Law & Eq. 581. 144 ind. 463, 40 N. E. 70, 43 N. E. ■" Lamb v. Lamb, 105 Ind. 456, 5 N. 560; Young v. Miller, 145 Ind. 652, 44 E. 171; Conway v. Vizzard, 122 Ind. X. E. 757. 266, 23 N. E. 771. '"Wait V. Westfall, 161 Ind. 648, 68 950 INDIANA PROBATE LAW. § 530 And the mere fact that one has been placed under guardian- ship as a person of unsound mind is not conckisivc evidence of such person's incapacity to make a w ill.** § 530. The statute only cumulative. — The \ alidity of a will may be tested by other methods than those set out in these statutes authorizing contests of wills. Chancery courts have often construed wills and entertained suits for the purpose, and the first step in all cases seeking a proi>er construction of a will was to ascertain the validity of the will.*" This chancery power still exists in the courts of this state, and there are many cases which recognize the right of the courts to pass upon and construe wills. ■*" In many of these cases the question came before the court in actions to tiuiet title; in others, in actions to recover possession of property; and in others the question was whether or not the will was void by reason of the ambiguity of some of its provisions. The right to test the validity of a will given by the statute is cumulative in a certain sense, and is in addition to the old right in equity. The court says : "The statute providing a method for contesting wills has no application to such a case as this. That ■** Stevens v. Stevens, 127 Ind. 560, have been executed by one under 26 N. E. 1078; Redden v. Baker, 86 guardianship, the burden is upon those Ind. 191; Stone v. Damon, 12 Mass. who seek to uphold it to show by 504; Harrison v. Bishop, 131 Ind. 161, clear, explicit and satisfactory evi- 30 X. E. 1069; § 798, post. In the dence that at the time it was executed last case it was held: "The adjudica- the maker had the requisite degree of tion of mental unsoundness in pro- mental capacity." ceedings for the appointment of a *^2 Story's Equity, S 1446. guardian for a person, while it con- "Craig v. Secrist. 54 Ind. 419; clusively establishes the fact of his Fraim v. Millison, 59 Ind. 123 ; Schori inability to manage his estate, does v. Stephens, 62 Ind. 441 ; Cann v. not necessarily establish the existence Fidier, 62 Ind. 116; Bunnell v. Bun- of such unsoundness as would inca- nell, 73 Ind. 163 ; Judy v. Gilbert, 77 pacitate him from making a valid Ind. 96, 40 Am. Rep. 289n ; Haines v. will. Allen, 78 Ind. 100. 41 Am. Rep. 555; It is, however, prima facie evi- Holbrook v. McCleary, 79 Ind. 167; dence of such want of mental power, Price v. Price. 89 Ind. 90; Butler v. and when the validity of a v^rill is Moore, 94 Ind. 359, and others, properly in question, if it is shown to S r^'I CONTEST OF WILLS. 95 ^ statute was not meant to cut down the inherent equity powers of the courts, but rather to enlarge the rights of parties by allowing the probate of a will to be opened and the question of the validity of the will investigated. It enlarges the rights of those who deny the validity of a will, but it does not limit the rights of those who affirm it to be valid. There is no abridgement of the right to have title quieted to land devised and conflicting claims ad- justed. Not a word in this statute, not an indication in its spirit, applies to suits brought by those who seek to make good their titles by upholding a will. It was meant for those who attack, and not those who defend. Its letter and its spirit apply only to those who would strike down, not those who would uphold, the will. There is no statutoi-y provision conferring a specific rem- edy where a devisee or legatee, or an executor or an heir, desires to settle title by having a conclusive adjudication sustaining the will, but, as the authorities cited fully show, there is a remedy. If there is not, then ever)'thing must remain unsettled and uncer- tain until the lapse of three years from the date of the probate. Elementar\' principles are opposed to such a conclusion, and evil results would inevitably flow from it." And "Jurisdiction to con- strue a will, or to settle title under it, carries the incidental right to detennine the validity of the will, for without a decision ot that question there is no final determination of the controversy. This is so upon the principle that authority to tr\' the main question involves the right to tr}' all incidental ones."" § 531. Who may sue to construe will. — The executor or the devisees and legatees or any of them, may maintain a suit to secure a construction of a will, and the decree of the court is conclusive upon all who are parties to the action.*' It is said : "An executor may sell lands under a will, and if he does so by order of court the judgment is conclusive as to the particular *■ Faught V. Faught, 98 Ind. 470. But *' Heiss v. Murphey, 43 Wis. 45; courts of equity have no jurisdiction Sherwood v. Sherwood, 45 Wis. 357, independent of" statute, of actions to 30 Am. Rep. 757; Rosenberg v. revoke the probate of a will. Craw- Frank. 58 Cal. 387; People v. David- fordsville Trust Co. v. Ramsey, — Ind. son. 30 Cal. 379; Stewart v. Stewart, — , 98 N. E. 177. 31 Ala. 207. 952 INDIANA PROBATE LAW. .^ ;3 1 land onlcitHl to be sold. So, an executor may bring an action ti) settle contlicting claims between legatees. A widow may main- tain a suit to have her rights under a will judicially determined, and the judgment is conclusive. In each and all of these proceed- ings the validity of the will is necessarily in issue; if it were otherwise, then nothing would be settled. In the cases where the suit is brought by an executor, the right to act as executor is involved, as well as the i)Owers as such trustee, and these all flow back to the will, for, if no will, then no executor, and no powers as such. It cannot be possible that an executor must wait three years before he can be certain that there is a will ; if so. creditors, legatees and devisees must be held off, and everything remain un- settled. It is equally clear that a widow has a right to know her title under the will, and to know this is a sheer impossibility with- out knowing also that, so far as concerns her interests, tliere is a will. and. of course, a valid one, for an invalid will is as nothing.'"" And where suit is brought to quiet title to real estate, the de- fendant may defend by cross-complaint setting up the invalidity of the will upon which the plaintiff bases his title to such real estate; and while the effect of such action is to contest the validity of the will, such defendant cannot be required to give a bond as in contests under the statute. The court in one case says, "that when an heir is, without his consent, brought into a court of equity by the executor of the will of his ancestor, or some other adversely interested party, and compelled either to contest the will in that action or pennit its validity to be finally adjudi- cated against him. he may avail himself of all the defenses open to a defendant in a suit in equity, including the right to file a cross-action, bringing all parties in interest before the court, and contesting the will, just as he could have done had the statute never been enacted." In other words that where an action of this kind is brought by any one interested under the will, it is a suit in equity and may be defended as such and the validity of the "Faught V. Faught. 98 Ind. 470; 149; Gilliam v. Chancellor, 43 Miss. Youmans v. Youmans, 26 N. J. Eq. 437, 5 Am. Rep. 498. §532 CONTEST OF WILLS. 953 will challenged without regard to the statute providing for the contest of wills. ^"^ § 532. Pleading and practice in actions to contest. — In ac- tions to contest the validity of wills or resist their probate, the rules governing" the trial of civil actions under the code are applicable, and pleadings, demurrers, motions, answers, pleas in abatement, statute of limitations, estoppel, etc., are sanctioned in such actions by the reported cases. °^ The complaint in such action must state such facts as are necessary to give the court jurisdiction ; the death of the testa- tor, and whether he was resident or non-resident at the time of his death; if a non-resident, that he left assets in the county where the action is brought, or that assets have come into it since his death; and allege the due execution of the will." The interest of the contestor should also be shown, and where there is more than one interested party, all who have an interest may join in the action." "" Mason v. Roll, 130 Ind. 260, 29 N. Wood, 61 Ind. 132. The jurisdiction E. 1135; Putt V. Putt, 149 Ind. 30, 48 of the court of an action to contest a N. E. 356, 51 X. E. Zll. A will which has been duly admitted to pro- bate in another state cannot be at- tacked in an action to quiet title brought in this state, although the ex- ecution of the will was procured by fraud. Winslow v. Donnelly, 119 Ind. 565, 22 N. E. 12. " Morse v. Morse, 42 Ind. 365 ; Bowers v. Bowers, 53 Ind. 430; Mc- Elfresh v. Guard. 32 Ind. 408; Todd V. Fenton, 66 Ind. 25 ; Schmidt v. Bon- nersbach, 64 Ind. 53 ; Turner v. Cook, 36 Ind. 129; Hayes v. Burkham, 67 Ind. 359; Perry v. Bland, 4 Ind. 297. The suit must be instituted in the county where the testator died, or where some portion of the estate af- fected by the will is situated, and the complaint should show the facts con- ferring jurisdiction. Sutherland v. Hankins, 56 Ind. 343; Thomas v. will will be presumed without the facts being set forth in the complaint unless the contrary appears. Lee v. Tcnipleton, IZ Ind. 315; Kinnaman v. Kinnaman, 71 Ind. 417. The exec- utor and all persons named as bene- ficiaries in a will are necessary parties to an action to contest the will. Har- ris V. Harris, 61 Ind. 117. "Harris v. Harris, 61 Ind. 117; Thomas v. Wood, 61 Ind. 132; Cofif- man v. Reeves, 62 Ind. 334; Kinna- man V. Kinnaman, 71 Ind. 417 ; Suth- erland V. Hankins, 56 Ind. 343 ; Lee V. Templeton, IZ Ind. 315. "Xciderhaus v. Heldt, 27 Ind. 480; Morse v. IMorse, 42 Ind. 365. An ad- ministrator of a decedent cannot join with the heirs in contesting a will when they have no joint interest in the matter. Harris v. Harris, 61 Ind. 117. One interested party may pros- 954 INDIANA PROBATE LAW. § 532 The allegations of the contestor must be in writing, verified by iiis affidavit, and for all the purposes of the action nnist be treated as his complaint ; and where there is more than one who joins in the contest, the complaint may be verified by any one or more of them.^* Where the contestor is an infant, his complaint may be verified by his next friend.'" In the trial of such actions the burden of proof is u\)on the con- testor to establish his case by a preponderance of the evidence and this gives to him the right to open and close the argument.'"* It is the better practice to verify the complaint, but such verfi- cation is not necessary as a jurisdictional fact, and any objection on account of a failure to attach the statutory affidavit may be waived. ^^ In an action to contest a will, the instrument itself is not the foundati».)n of the action, and it is not necessary to file a copy of it with the complaint as an exhibit; if so filed it cannot be used to supply any necessary averment which is absent from the complaint.'" The executor and all other persons beneficially interested must be made parties defendant to such complaint. The testator's ecute a suit to contest a will without contest a will. Willctt v. Porter, 42 other parties in interest heiuK joined Ind. 250. Failure to verify the com- with him as plaintilT. Kinnaman v. plaint will not oust the court of juris- Kinnanun, 71 Ind. 417. Purchasers diction. Sutherland v. Hankins, 56 of lands from a devisee under a pro- Ind. 343. bated will are proper parties to a suit °" Moore v. .Mien, 5 Ind. 521 : Sur- to contest such will. Roberts v. Ab- ber v. Maytield, 156 Ind. 375, 60 X. bott, 127 Ind. 83, 26 N. E. 565. If a E. 7. question as to a defect of parties is " Sutherland v. Hankins, 56 Ind. not raised at the proper time the de- 343; Lange v. Dammier. 119 Ind. 567, feet will be deemed waived, Thomas 21 N. E. 749. V. Wood, 61 Ind. 132. A joint com- "" Schmidt v. Bomersbach, 64 Ind. plaint must show a joint cause of ac- 53. In an action to contest the valid- tion in all the plaintiffs. Scott v. ity of a will, it is not necessary to set Farman, 89 Ind. 580. out with the complaint a copy of the " Willett v. Porter, 42 Ind. 250. will, and hence it is unnecessary to °" Turner v. Cook, 36 Ind. 129. It set out copies of deeds, or writings, is only necessary that one of the referred to in the will, and if they are plaintiffs shall verify a complaint to so set out they may be properly § 53- CONTEST OF WILLS. 955 widow, when named as a beneficiary in his will, is a necessary party defendant in an action to contest such will.^'* The proceeding to contest a will being a special one, the general statute as to the joinder of causes, demurrers for misjoinder, and providing for docketing separately actions improperly joined, does not apply to the extent of making it error to strike out of a complaint in such proceeding, surplus matter, even though the matter stricken out might state a cause of action for some other purpose. ^'^ The complaint in an action to contest a will must show a cause of action in all the plaintiffs who joined in the action, and if the action pretends to be joint and no joint cause of action is stated, a demurrer will lie for want of sufficient facts. An administra- tor of the decedent cannot maintain an action to contest the valid- ity, and resist or set aside the probate of a will, nor will he be per- mitted to sustain such action by joining with him the heirs at law of the decedent.''^ The voluntary dismissal of a suit to contest a will does not pre- clude the party from renewing the suit at any time within the lim- itation imposed by the statute."" Any person interested in the will, or in the estate of the testa- tor may contest his will without joining with him other interested parties ; and if a part of the plaintiffs to such an action dismiss the same as to themselves, the others may prosecute such action to a conclusion. ^^ A complaint to contest a will is sufficient,, if it alleges in gen- eral terms that the will was unduly executed ; or that the testator was of unsound mind. These general allegations will include every species of unsoundness of mind, undue execution, undue influence, duress, fraud, etc.** struck out on motion. Summers v. is a cause of action which survives. Copeland, 125 Ind. 466, 25 N. E. 555. Crawfordsville Trust Co. v. Ramsey, * Thomas v. Wood, 61 Ind. 132. — Ind. — , 98 N. E. 177. ** Summers v. Copeland, 125 Ind. "" Kinnanian v. Kinnaman, 71 Ind. 466, 25 X. E. 555. 417. "Harris v. Harris, 61 Ind. 117. *" Kenworthy v. Williams, 5 Ind. "'Wait v. Westfall, 161 Ind. 648, 68 375: Reed v. Watson, 27 Ind. 443; N. E. 271. The right to contest a will Willett v. Porter, 42 Ind. 250; Bow- 95^ IXDIAXA PROBATE LAW. § :;33 The probate of a former will cannot be pleaded in bar of an action to contest such will in favor of a later one, unless those propounding the later will are in some way estopped from disputing the validity of the first.'"' In a proceeding to contest a will which has been admitted to probate, the burden of proof is upon the person making such contest.*''^ § 533. When contestant estopped. — A person may estop himself from contesting a will, and the fact that one person inter- ested has so estopped himself is no defense to a contest by other interested parties: nor does the fact that one who is estopped joins with others who are not prevent them from contesting the will." A person who has received a legacy under a will cannot con- test the validity of the will, without restoring the legacy or bringing the money into court."* As is said, "A party cannot man v. Phillips, 47 Ind. 341 ; Wenning will, and cannot be maintained, unless V. Teeple, 144 Ind. 189, 41 \. E. 600. a bond is filed as required by that sec- General allegations that a will was tion. unduly executed, and that the testator * Turner v. Cook, 36 Ind. 129. A was a person of unsound mind, make complaint in an action contesting a a complaint good under the statute will which charges that the testator's relating to the contesting of wills, mind was so far affected that he no Lange v. Dammier, 119 Ind. 567, 21 longer possessed a sound and dispos- N. E. 749. A complaint to overthrow ing mind and memory, is sufficient a will, which alleges generally that when tested for the first time in the "the will has been admitted to probate Supreme Court by an assignment of unlawfully and without sufficient error. Under such an allegation as proof," is too vague and uncertain, above, proof was admissible, showing Herbert v. Berrier, 81 Ind. 1. the extent to which the testator's "'Burns v. Travis, 117 Ind. 44, 18 mind was impaired, and the defective N. E. 45. Where, after a will has allegations in the complaint would be been admitted to probate, a verified cured by the verdict of the jury, complaint is filed, alleging that the Burkhart v. Gladish. 123 Ind. 337, 24 will had been revoked by the execu- X. E. 118. tion of a later will, and that its ad- *^ Floyd v. Floyd, 90 Ind. 130; mission to probate was unlawful, and Faught v. Faught, 98 Ind. 470; Leach praying that the probate thereof be v. Prebster, 39 Ind. 492. annulled and the later will admitted ""Lee v. Templeton, 73 Ind. 315; to probate, such proceeding is, in legal Holt v. Rice, 54 N. H. 398, 20 Am. effect, an application to contest the Rep.. 138. In an action by several per- 8 533 CONTEST OF WILLS. 957 occupy inconsistent positions ; and where one has an election be- tween several inconsistent courses of action, he will be confined to that which he first adopts. Any decisive act of the party, done with knowledge of his rights and of the fact, determines his election and works an estoppel.'"^® So where a devisee under a will, claiming land as devisee, joins in an unsuccessful suit for partition of the same, without knowledge at the time of the mental unsoundness of the testator, he will not be estopped to contest such will. He has obtained nothing, and has nothing to restore. His election was without knowledge of the facts. '"^ If a decree is rendered quieting title to lands claimed by virtue of a will, such decree estops the parties to the suit from after- ward contesting the validity of the will. In such action where the will is the foundation of the title, the judgment settles all questions respecting the title involving the validity of the will.''^ One who prosecutes a claim for money due from the estate of a decedent, and after judgment receives the money thereon, is not estopped to contest the validity of a will of such decedent, even though such claim was prosecuted with knowledge of the invalidity of the will. It was purely a legal right which was in no way dependent on the will."^^ The probate of a former will cannot be pleaded in estoppel of an application to admit a later will of the same testator to sons to contest a will, an answer that will annexed, for services rendered to one of such persons is a legatee, and the testator, and for property con- that he has received and retains his verted by him, did not estop the plain- legacy, is insufficient, as the action is tiff to deny the validity of the will, not joint, but is a proceeding in rem Roberts v. Abbott, 127 Ind. 83, 26 N. where the interests of the parties are E. 565. several, and though one may have es- *"* Bigelow, Estoppel, 503. topped himself to maintain the pro- '"Lee v. Templeton, IZ Ind. 315; ceeding, this fact does not preclude Rodermund v. Clark, 46 N. Y. 354 ; the others who have united with him Herman, Estoppel, § 475. in such proceedings. Floyd v. Floyd, "' Faught v. Faught, 98 Ind. 470 ; 90 Ind. 130. The fact that a plaintiff, Freeman, Judgments, § 249 ; Mason v. with knowledge of the execution of a Roll, 130 Ind. 260, 29 N. E. 1135. will, which disinherited her, prose- '" Roberts v. Abbott, 127 Ind. 83, 26 cuted a claim to final judgment X. E. 565. against the administratrix with the 95^ INDIANA PROBATE LAW. § 1^33 probate, unless the applicant had such connection with the former will, or the probate thereof, as to estop him from denyin*,' its validity. Such ai)plication fur the admission of a later will to probate is in legal effect an application to contest the validity of the former will, therefore in such a proceeding a bond should 1^ filed as required by the statute; and there is no impropriety in joining with an application to admit such later will t(j probate a demand that the probate of the fomier will Ije revoked and set aside/^ The approval by the court of the final report of an executor together with an order of distribution of the property of the testator in the hands of such executor does not estop one inter- ested from contesting the will if he has accepted nothing under its provisions. The entering of an order of final settlement in a decedent's estate does not operate to preclude a contest of his Where a conveyance of land has been made by a testator in his lifetime to liis child in the nature of an advancement in considera- tion that such child would make no claim against his estate, the child is not thereby estopped to contest the father's will.'^ But "Burns v. Travis. 117 Ind. 44, 18 tion to contest the will of a N. E. 45. To a suit to contest a will, testator, to appear in court at the an answer alleging a fuial settlement time fixed for the hearing of the ex- and an order of the court discharging ecutor's final report and interpose ob- the administratrix with the will an- jcctions to the final settlement of the nexed, presents no defense where the estate, for the reason that he intends estate consists of both personal and to contest the will within the time al- real property. Roberts v. Abbott, 127 lowed by law. There are certainly no Ind. 83, 26 X. E. 565 ; Heaston v. grounds for asserting, under the stat- Krieg„ 167 Ind. 101, 77 X. E. 805, 119 ute relative to the settlement of es- Am. St. 475. tates, that the filing by the executor " Stuckwisch V. Kamman, 166 Ind. of his final report involves or tenders, 672, 77 N. E. 349; Foley v. O'Donag- as an issue, the validity of the will, hue, 167 Ind. 134, 77 X. E. 352. In and that therefore such issue is de- the case first cited the court says: termined and adjudicated by the judg- ''There is no provision in the statute ment approving the report so as to concerning the settlement of the es- preclude any inquiry, in the future, in tate of a decedent which in any man- respect to that issue." ner can be said to require a person " Bower v. Bower, 142 Ind. 194, 41 who contemplates instituting an ac- N. E. 523. § 534 CONTEST OF WILLS. 959 one who has elected to take under a will is precluded from after- wards assailing the validity of the will.'*' § 534. Time within which action must be brought. — All ac- tions under these statutes to contest the validity of a will, or set aside its probate, must be brought within three years after such will is offered for probate." Such action being purely a statutory proceeding, the requirements of the statute in this respect must be complied with. But where an action has been properly begun within the three years, and an amended complaint making new parties is filed after the time limited has expired, the action in such case must be deemed commenced against all the parties thereto from the time when the suit was originally instituted. The interest of the parties is held joint and inseparable, and that such proceeding is substantially one in rem, and the court cannot take jurisdiction of the subject-matter by fractions. So where a petition to contest a will is filed within the statutoiy period of limitation, although a part only of the persons interested are made parties thereto, the right of action is saved as to all who may ultimately be made parties to such action, notwithstand- ing the fact that some of them are not brought into the case until after the period of limitation has expired. Therefore, in such case, if the right of action is saved to one it is necessarily saved to all.^^ The limitation provided in the statute is a bar to all save those who are under disability, such as infants, persons of unsound mind, and non-residents of the state. These have two years after the removal of their disabilities to contest the validity or due execution of a will.'^ '*' Keys V. Wright, 156 Ind. 521, 60 jection to a complaint in an action to N. E. 309 ; Starkey v. Starkey, 166 contest a will, upon the ground that it Ind. 140. 76 \. E. 876. appears to have been filed more than "Burns' R. S. 1908, § 3154. Potts three years after the will is alleged to V. Felton, 70 Ind. 166. have been probated, is removed by an " Floyd V. Floyd, 90 Ind. 130 ; Brad- amendment of the record showing ford v. Andrews, 20 Ohio St. 208, 5 that the original complaint was filed Am. Rep. 645. within three years from such probate, ^ Burns* R. S. 1908, § 3159. Cor- Floyd v. Floyd, 90 Ind. 130. nell V. Goodrich, 21 Ind. 179. An ob- 960 INDIANA PROBATE LAW. § 535 And it is further provided by statute that "the final deter- mination of such cause against the plaintiff shall not debar any other person from contesting such will within said three years.""" This limitation applies to statutory actions to contest the validity of a will or resist the probate thereof, and does not apply to such actions in equity as seek a construction of a will, or those actions where the question of the validity of a will is necessarily involved, although its construction is not the main purpose of the action. ^^ It is held that the statute of wills is special with reference to the right of contest, and that it creates a right not existing in its absence, and gives such right on condition that it be exercised within three years,*^ and the right to contest is not extended or limited by the general statute of limitations.'*^ § 535. Contestor must file bond. — By the statute, "before any proceedings shall be had on an application to contest a will after probate thereof the person making the same, or some other person in his behalf, shall file a bond, with sufficient sureties, in such amount as shall be approved by the clerk of such circuit court, conditioned for the due prosecution of such proceedings and for the payment of all costs thereon in case judgment be awarded against him."^* The bond required b}- this section of the statute is not a neces- sary pre-requisite to the court's jurisdiction in contest proceed- ^° Burns' R. S. 1908, § 3157; Kinna- bond is tendered after the proceeding man v. Kinnaman, 71 Ind. 417; Floyd is commenced it should be accepted. V. Floyd, 90 Ind. 130. Lange v. Dammier, 119 Ind. 567, 21 ^'^ But see Putt v. Putt, 149 Ind. 30, N. E. 749. Failure to file bond when 48 N. E. 356; 51 N. E. 337. the proceedings are instituted does ^Bartlett v. Manor, 146 Ind. 621, not afifect the jurisdiction of the 45 N. E. 1060; Blanchard v. Wilbur, court, but the proceedings may be 153 Ind. 387, 55 N. E. 99. stayed until a bond is filed. Coffman ^Evansville &c. Storage Co. v. v. Reeves, 62 Ind. 334. Any proceed- Winsor, 148 Ind. 682, 48 N. E. 592. ing to have a will declared invalid is ^Burns' R. S. 1908, § 3155. While an application to contest the same, a proceeding to contest a will should and a bond must be filed as required be dismissed if the bond required by by this section. Burns v. Travis, 117 the statute is not filed, yet if a good Ind. 44, 18 N. E. 45. § 53^ CONTEST OF WILLS. 96 1 ings. Such proceedings are purely statutory, and while a strict compliance with the requirements and formalities of the statute is required in the pleadings, all these requirements and formalities are not necessarily jurisdictional. The bond may be filed after the action has been commenced. ^^ Any proceeding, the purpose of which is to have a will declared invalid, is an application to contest such will, and a bond must be filed as required by this statute.^® And one who has been permitted by the court to prosecute an action to contest a will as a poor person is not by that act excused from giving the bond required by this statute." Where, in a suit, an attempt is made by the plaintiff to assert some right under a will, and the defendant by a cross-complaint contests the valid- ity of such will, the defendant will not be required to file a bond.*^ The dismissal of the action as to part of the plaintiffs does not annul the bond already on file as to those who remain. ^^ While the filing of a bond is not pre-requisite to jurisdiction, yet a failure to do so, if properly presented to the court, is suffi- cient cause for a dismissal of the action.^*' § 536. Notice and hearing of action. — After the filing of the application it is further provided that: "After the service of citation upon the defendants fourteen days before the hear- ing of such cause, or upon proof of the publication of notice made after the filing before said clerk of an affidavit of a dis- interested person that the person so notified is not a resident of the state, or that his residence is unknown (such publication being made for three weeks successively in a weekly newspaper printed and published in the county, or, if none be published in such county, then in the county nearest thereto, thirty days ^ Coffman v. Reeves, 62 Ind. 334 ; '* Mason v. Roll, 130 Ind. 260, 29 N. Lange v. Dammier, 119 Ind. 567, 21 E. 1135; Putt v. Putt, 149 Ind. 30, 48 N. E. 749. N. E. 356, 51 N. E. Zi7. ®° Burns v. Travis, 117 Ind. 44, 18 ^ Kinnaman v. Kinnaman, 71 Ind. N. E. 45. 417. "Harrison v. Stanton, 146 Ind. 366, '"Lange v. Dammier, 119 Ind. 567, 45 N. E. 582 ; Blanchard v. Wilbur, 21 N. E. 749. 153 Ind. 387, 55 N. E. 99. 61 — Pro. Law. 962 INDIANA PROBATE LAW. § 537 before the hearing of the cause), the court may proceed to hear and determine such cause; and if any of the defendants thereto are minors, the court shall appoint guardians to take care of their interests in the controversy.""' Where, under this section, notice is given by publication "three weeks successively" it means twenty-one days, and the necessary time required, therefore, for the notice would be fifty-one days."* The procedure as to notice to the parties when the probate of a will is resisted in court is the same in all resi)ects as upon the contest of a will after probate."^ § 537. Trial — May be by jury, etc. — Issues of fact in such cases are triable by a jury. The issue is not one of exclusively equitable jurisdiction. It is said : "The proceeding to contest a will in a court of law unrler our system is purely one of statu- tory creation, and the provisions of section 409 of the code of 1 88 1 do not apply to such proceedings. In order to bring a case within the provisions of that section of the code, it must appear that the proceeding was such as was exclusively one of chancery jurisdiction, and a proceeding cannot be of chancery jurisdic- tion which is the creature of a positive statute and was unknown to the old courts of chancery. The statute of 1843 g^^e a right to a jur\' trial in express terms, and this repels the implication that an action to contest a will was of exclusive equitable juris- diction. The right to a trial by jury is treated as not open to question by the authors who have written upon the question.""* Such actions being held to be purely of statutory origin a trial by jury is demandable as of right."' The burden of proof being upon the contestor he is entitled to open and close the case."" "Burns' R. S. 1908, § 3156. E. 458; Trittipo v. Morgan, 99 Ind. ^ Loughridge v. Huntington, 56 269. Ind. 253. "* Deig v. Morehead, 110 Ind. 451, "'McGeath v. Starr, 157 Ind. 320, 61 11 N. E. 458. See Hite v. Sims, 94 N. E. 664. Ind. 333. " Lamb v. Lamb, 105 Ind. 456, 5 X. «" Moore v. Allen. 5 Ind. 521 ; Sur- E. 171; 1 Redfield Wills, 49, 50; ber v. Mayfield, 156 Ind. 375, 60 N. Sackett's Instructions to Juries, 432; E. 7. Deig V. Morehead, 110 Ind. 451, 11 N. 538 CONTEST OF WILLS. 963 The action of an administrator or executor in the trial of an action to contest a will in failing to call the physician who attend- ed the testator, and in refusing to permit him to testify in behalf of the plaintiff, cannot be commented upon in the argument, nor considered by the jury in their determination of the case, and it is error to instruct the jury that they may consider such fact.®^ § 538. The evidence. — In a proceeding to contest a will the parties are competent witnesses even though the executor or ad- ministrator of the estate of the testator is a party to such suit. This rule, however, seems to be limited to evidence showing the mental condition of the testator, for there are cases where the question turns upon matters connected with the execution of a will, in which the parties would be incompetent witnesses."^ '^ Brackney v. Fogle, 156 Ind. 535, 60 N. E. 303. In this case the court says : "The cases constituting the class to which Hinshaw v. State, 147 Ind. 334 [47 N. E. 157] and Lee v. State, post [156 Ind. 541, 60 N. E. 299] 541, belong, and which are exten- sively collected in 1 Greenleaf on Ev. (16th ed.), § 195b, and which hold that it is proper for counsel to com- ment upon the failure to call accessi- ble witnesses who know, or are sup- posed to know, about the facts in con- troversy, are founded upon the single presumption that the testimony such absentees might give is reasonably presumed to be prejudical to the party's cause, or defense, and cannot therefore be accepted as authority in cases where the absence of the testi- mony rests upon a confidential rela- tion which may involve matters pre- judicial to the character or memory of the party, as well as to the subject- matter of the suit. It is not difficult to conceive cases wherein the testi- mony of a witness would be useful as affecting the suit, but the statute [is] invoked to protect matters of a graver concern. The rule does not therefore apply to the failure to call a priv- ileged witness. To sustain the rul- ings complained of would amount to little less than a repeal of the statute. If to claim its benefits is to be ani- madverted upon by opposing counsel, and the fancies of ingenious advo- cates turned against the cause of the party making it, and become a proper consideration for the jury in. deter- mining their verdict, then the confi- dence of the sick room, demanded by public policy, and which the statute seeks to secure, would be so exposed to violation as to keep it in a con- stant state of intimidation." ■^ Lamb V. Lamb, 105 Ind. 456, 5 N. E. 171; Coryell v. Stone, 62 Ind. 307; Staser v. Hogan, 120 Ind. 207, 21 N. E. 911, 22 N. E. 990; Wiseman v. Wiseman, IZ Ind. 112, 38 Am. Rep. 115; Cupp V. Ayers, 89 Ind. 60; Cot- trell v. Cottrell, 81 Ind. 87; Burkhart v. Gladish, 123 Ind. ZZ1 , 24 N. E. 118; Wallis V. Luhring, 134 Ind. 447, 34 N. E. 231. 964 INDIANA PROBATE LAW. 538 In such proceeding, the wife, being an heir at law of the testator, is a competent witness in her own behalf although her husband has been joined with her in the action."'' The subscribing witnesses to the will, in an action to set aside the will are competent witnesses as to the testator's mental con- dition.^ The record of the probate and proof of a will is admissible in an action to contest such will." The construction of a will is a legal question and where it is proper to submit the provisions of a will to the jury, it should be done under an instruction from the court as to the legal effect of such provisions.' The fact that a will made prior to the one being contested was procured by undue influence is not to go to the jury as a circumstance against the will in controversy.* The attending physician is not a competent witness to testify to the mental and physical condition of the testator prior to, or " Call V. Byram, 39 Ind. 499. ' Call V. Byram, 39 Ind. 499. ■ Summers v. Copeland, 125 Ind. 466, 25 N. E. 555. In this case it was in substance held that : In an action to contest a will, on the ground of the unsoundness of mind of the testator, it is riot error to admit in evidence the will, and probate thereof, although the probate contains the ex parte affi- davit of one of the witnesses, stating that the testator was of sound mind at the time of the execution of the will. Where the record of a will is oflfered in evidence the probate and will cannot be severed, and the will admitted and the probate rejected. Where an instruction is found in a series of instructions upon the subject of unsoundness of mind, and in an instruction preceding and in another following it the law on that subject is correctly stated, it is not objectiona- ble as tending to lead the jury to the conclusion that the rule announced is applicable, also, to the issue of undue influence. Conway v. Vizzard, 122 Ind. 266, 23 X. E. 771. 'State v. Patterson, 68 Me. 473; Magoe V. McXcil. 41 Miss. 17, 90 Am. Dec. 354; Underbill v. Vandervoort, 56 X. Y. 242 ; Ditton v. Hart, — Ind. — , 93 N. E. 961 ; Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec. 150. * Turner v. Cook, 36 Ind. 129. It is said in this case : "The court told the jury that if the making of the will which was executed ten years before the one in question, was procured by undue influence, that it would be a circumstance that the jury might con- sider in deciding whether or not the execution of this one was so procured. We think this instruction was not correct. The manner of the execution of that will was not in question. The defendants were not called upon to sustain it." ^33^ CONTEST OF WILLS. 96: at the time of his making a will, where such knowledge was acquired by him in his professional capacity. The law forbids the physician from disclosing what he learns in the sick room no matter by what method he acquires his knowledge. ° And this same rule applies to knowledge acquired by an attor- ney within the scope of his professional business, where the relation of attorney and client exists between him and the tes- tator.^ As this rule is one of privilege and goes only to the competency of the witness to testify, it may be waived by the proper parties." The mental condition of a testator both before and after the execution of his will may be inquired into when the contest of such will is based upon the unsoundness of mind of such testator. The presumption is in favor of sanity, but once it is shown that a person was, at one time, insane or of unsound mind, the pre- sumption changes, and such condition is presumed to continue, until it is shown that the sanity of the person has been tempora- rily or whollv restored.** • Heuston v. Simpson, 115 Ind. 62, 17 N. E. 261, 7 Am. St. 409; Carthage Tpk. Co. V. Andrews, 102 Ind. 138, 1 X. E. 364, 52 Am. Rep. 653 ; Williams V. Johnson, 112 Ind. 273, 13 N. E. 872; Gurley v. Park, 135 Ind. 440, 35 N. E. 279; Renihan v. Dennin, 103 N. Y. 573, 9 N. E. 320, 57 Am. Rep. 770; Rapalje Law Wit., § 272. • Gurley v. Park, 135 Ind. 440, 35 X. E. 279; Jenkinson v. State, 5 Blackf. (Ind.) 465; Bigler v. Reyher, 43 Ind. 112. • Gurley v. Park, 135 Ind. 440, 35 X. E. 279; Pence v. Waugh, 135 Ind. 143, 34 X. E. 860; Morris v. Morris, 119 Ind. 341, 21 X. E. 918; Bank v. Mer- sereau, 3 Barb. Ch. (X. Y.) 528. 'Rush V. Megee, 36 Ind. 69; Ken- worthy V. Williams, 5 Ind. 375; Wal- lis V. Luhring, 134 Ind. 447, 34 X. E. 231. If a testator has mental capac- ity sufficient to comprehend the extent and value of his estate, the number and names of the persons who are the natural objects of his bounty, and their deserts with reference to their treatment of him, and a memory suf- ficient to retain these facts long enough to direct the preparation of a will, he is mentally competent to exe- cute the will. Runkle v. Gates, 11 Ind. 95 ; Bundy v. McKjiight, 48 Ind. 502. Mental derangement amounting to insanity in any form renders a per- son incompetent to make a will. Eg- gers V. Eggers, 57 Ind. 461 ; Burk- hart V. Gladish, 123 Ind. 337, 24 X. E. 118. An unequal distribution of an estate by a testator does not justify an inference that he was insane, but injustice and inequality may be con- sidered in determining the mental ca pacity of the testator. Lamb v. Lamb, 105 Ind. 456, 5 X. E. 171 ; Conway v. Vizzard, 122 Ind. 266, 23 X. E. 771. 62 — Pro. L.\\v, C)66 INDIANA PROBATE LAW. § 538 A mere belief in witchcraft is not of itself sufficient evidence of the insanity of a testator." A party in an action to contest a will cannot testify respecting things which were not open to the observation of all the friends and acquaintances of the testator, nor can a party complain of the admission of evidence the substance of which he has himself elicited. And where a will is contested on the ground that it is a forgery, the evidence need not show the identical person whose hand perpetrated the forger}'.^" Where the mental capacity of the testator is involved, facts and circumstances which tend to show his mental condition, both prior and subsequent to the execution of the will, may he received in evidence; and the i)criod of time which may be covered by such investigation relative to his mental capacity is left largely to the discretion of the court in each particular case.'' The rule that confidential communications made to an attorney in the course of his professional business are privileged does not apply to testamentarv' dispositions where the controversy is be- tween the heirs and devisees of the testator. In such case an attorney who drew the will may testify as to communications made to him by the testator in reference to such will." When a contest is on the ground of v. Stevens, 127 Ind. 560, 26 N. E. 1078. insanity of the testator, his mental The testimony of a witness with condition both before and after the whom a testator had frequently execution of the will may be shown, charged his wife with improper inti- Dyer V. Dyer. 87 Ind. 13; Staser v. macy, that he had never had sexual Hogan, 120 Ind. 207, 21 X. E. 911, 22 intercourse with the wife of the tes- N E. 990. tator, was admissible as tending to "Addington v. Wilson, 5 Ind. 137. prove the allegation of the complaint When it is shown that the testator that the testator in making such was at one time of unsound mind, charges was influenced by insane de- such a state will be presumed to con- lusions. Burkhart v. Gladish, 123 Ind. tinue until it is shown that sanity has 337, 24 N. E. 118. been restored. Rush v. Megee, 36 "' McDonald v. McDonald, 142 Ind. Ind. 69 ; Kenworthy v. Williams, 5 55, 41 N. E. 336. Ind. 375. If a testator was adjudged "* Bower v. Bower, 142 Ind. 194. 41 insane and placed under guardianship X. E. 523. before executing a will, persons claim- "^ Kern v. Kern, 154 Ind. 29, 55 X. ing under the will must show that he E. 1004, overruling in part Gurley v. has been restored to sanity. Stevens Park, 135 Ind. 440, 35 X. E. 279. The §538 CONTEST OF WILLS. 967 The testimony of a witness, in an action to contest a will on account of the unsoundness of mind of the testator as to the capacity of the testator to transact business is incompetent, as that is not the issue. The precise question the jury is called upon to decide is the capacity of the testator to intelligently transact the business of making a will.'^ In such cases the testimony of the family physician as to communications made to him by the testator as his patient, are privileged and cannot be testified to by such physician over objection." While a belief in spiritualism is not of itself controlling evi- dence of an unsound mind, yet where it appears that the will in leading case upon this subject is Rus- sell V. Jackson, 9 Hare 387, in which Lord Justice Turner says, that, "The disclosure in such cases can affect no right or interest of the client. The apprehension of it can present no im- pediment to the full statement of his case to his solicitor, * * * and the disclosure, when made, can expose the court to no greater difficulty than pre- sents itself in all cases where the courts have to ascertain the views and intentions of parties, or the objects and purposes for which dispositions have been made. In Hageman's Priv. Com., § 86, the rule laid down in Rus- sell V. Jackson, 9 Hare 387, is con- cisely stated thus : "That communi- cations between a testator and his so- licitor in reference to the testator's will, are not privileged after the death of the testator; contra as to commun- ications between the same solicitor and the executors." Russell v. Jack- son, 9 Hare 387, is cited with ap- proval in Wharton on Evidence, and, in treating upon the subject of pro- fessional privilege it is said: "The privilege, it should also be remem- bered, is meant to protect the living in their business relations, and cannot be invoked when the question arises as to the intention of a deceased per- son in respect to the disposition of his estate." Wharton on Ev. (3rd ed.), § 59L In Graham v. O'Fallon, 4 Mo. 338, it is said, that an attorney who draws up a will is entirely competent to testify to its contents in order to set it up as a lost will, and his testi- mony is not subject to the objection that it discloses the confidential com- munications of a client. This view of the rule as to such communications, and the competency of the solicitor to testify to them, is sustained by the de- cisions in the following, among other cases : Blackburn v. Crawford, 3 Wall. (U. S.) 175, 18 L. ed. 186; Scott v. Harris, 113 111. 447; Sheridan v. Houghton, 6 Abb. N. Cas. (N. Y.) 234, 16 Hun (N. Y.) 628; Pence v. Waugh, 135 Ind. 143, 34 N. E. 860; Denning v. Butcher, 91 Iowa 425, 59 N. W. 69; Doherty v. O'Callaghan, 157 Mass. 90, 31 N. E. 726, 17 L. R. A. 188n. "Brackney v. Fogle, 156 Ind. 535, 60 N. E. 303. "Towles v. McCurdy, 163 Ind. 12, 71 X. E. 129. 968 INDIANA PROBATE LAW. §539 question was to some extent at least prompted by so-called spir- itual revelations, such belief may be shown to the jury/^ An executor who has no personal interest in the property trans- mitted by a will is a competent witness in a proceeding to contest such will/" also a competent witness in support of the will as to matters occurring during the lifetime of the testator.'^ § 539. Proof of declarations. — Statements or declarations of a testator made before, or after, or contemporaneously with the execution of a will, may be admitted in evidence as tend- ing to show his mental condition at the time of such execution; but unless made at or so near the time of the execution of the will as to be considered a part of the res gestae, such statements are not at any time competent to show fraud or undue influence/' " Steinkuchler v. Wempner, 169 Ind. 154, 81 N. E. 482, 15 L. R. A. (N. S.) 673n. '" Hiatt V. McColley, 171 Ind. 91, 85 N. E. 772. "Whiteman v. Whiteman, 152 Ind. 263, 53 N. E. 225. ■^ Bower v. Bower, 142 Ind. 194, 41 N. E. 523 ; Hayes v. West, 37 Ind. 21 ; Todd V. Fenton, 66 Ind. 25 ; Bundy v. McKnight, 48 Ind. 502; Vanvalken- berg V. Vanvalkenberg, 90 Ind. 433; Conway v. Vizzard, 122 Ind. 266, 23 N. E. 771; Goodbar v. Lidikey, 136 Ind. 1, 35 N. E. 691, 43 Am. St. 296. In a proceeding to contest a will on the grounds of mental incapacity and undue influence, a conversation be- tween the testator and another in re- lation to the former's views upon the subject of making wills, in which he spoke strongly against giving one child a larger share of the estate than another, is competent. Staser v. Ho- gan, 120 Ind. 207, 21 N. E. 911, 22 N. E. 990. Mere declarations of a testa- tor, not made in connection with the execution of a will, are not admissible for the purpose of showing undue in- fluence; but declarations made before the execution of the will, when the will is made in conformity with such declarations, are admissible by way of rebuttal of proof of undue influence. When by physical or mental superior- ity, one obtains an advantage in a transaction over another who is en- feebled in mind and body, or weak- ened by disease or old age, the person obtaining such advantage will be re- quired to show that the transaction was a fair one, provided he was pres- ent and actively concerned in bringing about the result complained of; but the presumption in favor of the valid- ity of a will should be increased rather than diminished from the cir- cumstance that a bequest was made to one with whom the testator had maintained intimate and confidential relations during life. Goodbar v. Lidikey, 136 Ind. 1, 35 N. E. 691, 43 Am. St. 296. Declarations of a testa- tor, made when not engaged in exe- cuting the will, are not admissible to show undue influence. Hayes v. West, 37 Ind. 21. § 539 CONTEST OF WILLS. 969 This rule also applies to written declarations of the testator as letters written by him and other wills executed by him." But it is also held that declarations of the testator in harmony with the provisions of the will in controversy are admissible to sustain such will.^° But evidence of conversations of the testator, which have no tendency to prove either unsoundness of mind or undue influence, should be excluded as immaterial.-^ Evidence of the admissions and declarations of one of several legatees or devisees is not admissible against the other legatees or devisees in an action to contest a will.'^ There is much conflict of authority, however, upon this ques- tion ; but the weight seems to be that the conversations, admis- sions and declarations of one legatee or devisee cannot be ad- mitted in evidence against his co-devisees or co-legatees. They are said to not have that joint interest in the will which will make the admissions of one admissible against the others.^^ But where such admissions are made by one who is sole leg- atee, and there are no others interested who could be aft'ected by '"Floto V. Floto, 233 111. 605, 84 N. tify as to the kind -and quality of E. 712 ; Ditton v. Hart, — Ind. — , 93 work and labor performed by the N. E. 961. plaintiffs for the testator during the ^Compher v. Browning, 219 111. time they lived at home, and their con- 429, 76 N. E. 678, 109 Am. St. 346 ; duct toward him, such evidence going Ditton V. Hart, — Ind. — , 93 N. E. to show whether the will was natural 691_ or unnatural, and whether the parties -^ Vance v. Vance, 74 Ind. 370. Dec- disinherited had so conducted them- larations of the testator as to the im- selves toward the testator as to merit portunities of a devisee for a favora- disinheritance. Burkhart v. Gladish, ble will, made at a time so remote 123 Ind. 337, 24 N. E. 118. from the execution of the paper that "" Hayes v. Burkam, 67 Ind. 359 ; they are not part of the res gestae, can Staser v. Hogan, 120 Ind. 207, 21 N. be considered only upon the question E. 911, 22 N. E. 990; Ryman v. Craw- of testamentary capacity. Vanvalken- ford, 86 Ind. 262; Forney v. Ferrell, berg v. Vanvalkenberg, 90 Ind. 433. 4 W. Va. 729; Thompson v. Thomp- ^ Hayes v. Burkam, 67 Ind. 359. It son, 13 Ohio St. 356; Shailer v. Bum- was not error for the court to permit stead, 99 Mass. 112. the parties and other witnesses to tes- 970 INDIANA PROBATE LAW. 540 his admissions, they are admissible against his interest or those of his heirs.^* The testator's declarations made before the execution of the will as to the disposition he intended to make of his property, which correspond with the disposition made in the will and that tend to support it, are admissible for that purpose.-^ While this is a correct exposition of the law as applied to the question of unsoundness of mind, it is equally as well settled that such declarations cannot be considered in connection with the issue of undue influence,"'* except it may be by way of rebuttal to sustain the will and show that it has been made in conformity to the repeated declarations of the testator.-' § 540. Opinion evidence. — Opinion evidence has been de- fined to be "the conclusions of witnesses concerning certain propo- sitions, drawn from ascertained or supposed facts, by those who ='Wallis V. Luhring, 134 Ind. 447, 34 N. E. 231 ; Taylor Est., § 588. "■^ Staser v. Hogan, 120 Ind. 207, 21 N. E. 911, 22 N. E. 990; Bundy v. McKnight, 48 Ind. 502. Where, prior to making his will, and while in good health, the testator declared his inten- tion to dispose of his property sul)- stantially as disposed of in the will, such fact tends to support the will. Lamb v. Lamb, 105 Ind. 456, 5 N. E. 171. Where the jury are instructed that statements of the testator prior to the making of the will in reference to his intended disposition of his property might be considered by them, and that if his stated intention of dis- posing of his property corresponded substantially with the disposition made, it was an important fact to be considered in determining the validity of the will, such instruction is a cor- rect exposition of the law as applied to the issue of unsoundness of mind. Conway v. Vizzard, 122 Ind. 266, 23 N. E. 771. In an action contesting tlic validity of a will, the jury was in- structed to consider numerous mat- ters relating thereto, including declar- ations made by the testator some time previous to the making of his will, showing that he designed to make the will as it stands. Such instruction was correct as affecting the capacity of the testator to make a valid will. And the mere fact that the jury are told that if they find certain evidence to be established, certain conclusions may be drawn therefrom, does not un- duly emphasize such evidence. Good- bor V. Lidikey, 136 Ind. 1, 35 N. E. 691, 43 Am. St. 296. -"Conway v. Vizzard, 122 Ind. 266, 23 N. E. 771 ; Hayes v. West, Z7 Ind. 21 ; Todd v. Fenton, 66 Ind. 25 ; Van- valkenberg v. Vanvalkenberg, 90 Ind. 433 ; Gurley v. Park, 135 Ind. 440, 35 X. E. 279. ^ Goodbar v. Lidikey, 136 Ind. 1, 35 N. E. 691 ; Redf. Wills, 568 ; Schouler Wills, § 343; Roberts v. Trawick, 17 Ala. 55, 52 Am. Dec. 164n. 540 CONTEST OF WILLS. 9/1 have had better opportunities than the ordinary individual or witness to judge of the truth or falsity of such propositions, or who are familiar with the subject under inquiry, and give their conclusions from the facts within their own knowledge concern- ing certain questions involved in the issue.'"' The general rule is that witnesses must state facts and not opinions; that it is usurping the province of the court or jury to allow them to draw conclusions or inferences from the facts stated."" This general rule, however, has many exceptions, one of which is in reference to the sanity or insanity of the testator, in cases where his will is contested on the ground that he was of unsound mind at the time of its execution. Opinion evidence in such cases resolves itself into two classes, that of expert witnesses and of non-expert witnesses. The rule as to admissibility of the opinions of these two classes is not the same. An expert, as the word imports, is one having experience. The books furnish no clearly-defined rule as to what amount of experience, knowledge, etc., is necessary to constitute an expert. Much always depends upon the nature of the question in regard to which an opinion is asked.'*^ Such witnesses may, in a proper case, give their opinions upon a given state of facts presented to them in the form of hypothetical questions. A question purely hypothetical, though, should not be asked. The expert's opinion should be based upon his own testimony, or facts within his own personal knowledge, or upon facts assumed to have been proven in the case. In one case it is said : "The party seeking an opinion in such case may, within reasonable limits, put his case hypotheti- cally, as he claims it to have been proved, and take the opinion of the witness thereon, leaving the jury, of course, to determine whether the hypothetical case put is the real one proved.'"' -7 Am & Eng. Encyc. Law, 491. St. 146; Page v. Parker, 40 N. H. 47; ^''McNiel V Davidson, Zl Ind. 336; Mobile Life Ins. Co. v. Walker, 58 Heath V. Slocum, 115 Pa. St. 549, 9 Ala. 290. An expert witness cannot Atl 259 • Abbott v. People, 86 N. Y. express an opinion as to the sanity of 460- Campbell v. State, 10 Tex. App. the testator based upon the ^evidence, 560,' McDonald v. McDonald, 142 Ind. but a hypothetical question must be 55 41 N. E. 336. asked. Rush v. Megee, 36 Ind. 69. ^Ardesco Oil Co. v. Gilson, 63 Pa. '^Bishop v. Spining, 38 Ind. 143; 972 INDIANA PROBATE LAW. §540 The question when put need not embody all the matters of which there is any evidence.^^ The competency of a witness who is introduced as an expert must be shown before his opinion can be given. Until he is proven to be an expert it is proper to exclude all questions which call for his opinion. ^^ . Under the rule, however, where the witness has been shown to possess the requisite qualifications of an expert^ and having seen, conversed with, and examined the testator, he is authorized to express an opinion as to the mental condition of such testator.^* It is not proper in asking hypothetical questions to incorporate in them the opinion of other expert witnesses. An opinion of an expert witness cannot be based upon opinions expressed by other experts. Facts, not opinions, must be assumed in the questions.^^ A non-expert witness cannot give his opinion upon a hypotheti- Rush V. Megee, 36 Ind. 69; Guetig v. State, 66 Ind. 94, 32 Am. Rep. 99n; Nave V. Tucker, 70 Ind. 15; Davis v. State, 35 Ind. 496, 9 Am. Rep. 760n; Goodwin V. State, 96 Ind. 550 ; Elliott V. Russell, 92 Ind. 526; Cowley v. People, 83 N. Y. 464, 38 Am. Rep. 464 ; Hotchkiss V. Mosher, 48 N. Y. 478; Railroad Co. v. Schultz, 43 Ohio St. 270, 54 Am. Rep. 805. *= Goodwin v. State, 96 Ind. 550. ^ Hinds v. Harbon, 58 Ind. 121; Stennett v. Pennsylvania Fire Ins. Co., 68 Iowa 674, 28 N. W. 12; Hig- bee v. Guardian Mut. Life Ins. Co., 53 N. Y. 603; Russell v. Cruttenden, 53 Conn. 564, 4 Atl. 267; Spring Co. v. Edgar, 99 U. S. 645, 25 L. ed. 487. In Ft. Wayne v. Coombs, 107 Ind. 75, 7 N. E. 743, 57 Am. Rep. 82, it is said : "A witness was introduced by the ap- pellees, and testified to facts showing that he was qualified to testify as an expert. The appellant asserted a right to examine him as to his qualifica- tions before the appellees proceeded with their examination, but the court denied their request. It is for the court to determine whether the wit- ness is or is not qualified to testify as an expert, and the question as to his competency is exclusively for the court. * * * It is quite clear that the court must decide the question of the qualification of the witness, and when it is made to appear prima facie that the witness possesses the requis- ite qualification the court may admit the testimony, and is not bound to al- low a preliminary cross-examination. * * * If the evidence satisfies the court of the qualification of the wit- ness, it is not bound to permit a pre- liminary cross-examination, though it would, no doubt, have a right to do so, and in our judgment this right is one that should be very liberally ex- ercised." " Stevens v. Leonard, 154 Ind. 67, 56 X. E. 27, 77 Am. St. 446n. "^ Ditton V. Hart, — Ind. — , 93 N. E. 961; Louisville &c. R. Co. v. Fal- vey, 104 Ind. 409, 3 N. E. 389, 4 N. E. 908. 540 CONTEST OF WILLS. 973 cal statement of the facts, but must base such opinion wholly upon facts within his pwn knowledge. The rule is that witnesses who are not experts are competent to give an opinion as to the soundness or unsoundness of mind of a testator, but such wit- nesses are required to give to the jury the facts upon which such opinion is based. The witness is therefore competent to give a statement of all he may know about such testator, both before and after it is claimed that his mind failed, together with what he did and said, and the change, if any, in his manner, with a view of enabling the jury to weigh and test the value of such wit- ness's opinion when given.^® It is somewhat difficult, under this rule, to fix a limit to the facts about which a party may testify, and it is perhaps impos- sible to fix any exact rule which would be an inflexible guide in all cases, but in giving the facts upon which the witness bases his opinion, it cannot be doubted that he should be permitted to state every fact which could be reasonably made the foundation of an opinion as to the mental condition of the testator. If not per- mitted to state all the facts, the rule permitting parties to testify as to the mental condition of a testator would be of little value, as the court or jury would be without the means of weighing such opinions." But where it is practicable to place palpably before the jury the facts upon which the witnesses base their opinions, it is per- '' Staser v. Hogan, 120 Ind. 207, 21 and after the execution of his will, N E. 911, 22 N. E. 990; Lamb v. was a competent witness to give an Lamb 105 Ind. 456, 5 N. E. 171 ; Con- opinion as to his soundness of mind, way V. Vizzard. 122 Ind. 266, 23 N. E. Ryman v. Crawford, 86 Ind. 262. A 771; Clinev. Lindsey, 110 Ind. 337, 11 witness having testified as to the N E. 441; Mills v. Winter, 94 Ind. physical and mental condition of the 3^9- Leach v. Prebster, 39 Ind. 492; testator during the last year of his Ryman v. Crawford, 86 Ind. 262. life, a question on cross-exammation ''' Burkhart v. Gladish, 123 Ind. 337, as to whether the witness would, dur- 24 N. E. 118; Fiscus v. Turner, 125 ing that period, have taken a note Ind 46, 24 N. E. 662. A person not an from the testator, and whether he expert,' after testifying that he had ever heard anybody question his san- long known the testator, being a ity, is not competent. Staser v. Ho- neighbor, had often dealt with him, gan, 120 Ind. 207, 21 N. E. 911, 22 N. and conversed with him both before E. 990. 974 INDIANA I'KOHATi; LAW §540 haps as well to restrict them to such facts, and thus leave the jury to form their own opinion from sucii facts, without the opinions of witnesses.^** The rule which admits the opinion of non-expert witnesses in such cases is based upon necessity, and rests upon the proposition that there may be something in the looks and manner of a person, which may contribute to the conclusion that he is of unsound mind, which cannot be described in words by the witness."" Under the iiile permitting a non-expert to give an opinion it is frequently difficult to fix a limit to the facts about which the wit- ness may testify, as it is evident tlie weight of the opinion given must of necessity depend upon the facts upon which it is based/** The facts on which sucli witness bases his conclusion may be asked for on cross-examination. If any material facts are stated at all by the witness lending to show such knowledge and intimacy "'Railroad Co. v. Schultz, 43 Ohio St. 270, 54 Am. Rep. 805; Carthage Tpk. Co. V. .Andrews, 102 Ind. 138, 1 N. E. 364, 52 .\ni. Rep. 657. Suit to contest a will on the ground that the testator was of unsound mind. Held, that evidence that the testator had ex- pressed the opinion that some of his children, contestants, had mistreated him, stating no fact, with an opinion expressed by such children, as wit- nesses, that they had not mistreated him, was too intangible to justify an instruction that if the testator was in- fluenced in framing his will by such belief, and that it was a delusion, the fact would justify a verdict for the contestants. Held, that an admission by one of several contestees that the testator was of unsound mind, was not admissible in evidence. Held, that evidence that a tract of land devised to one of the contestees was purchased with money of the testator's first wife, and that the title was taken by mis- take in his own name, was not admis- sible. Shorb v. Brubaker, 94 Ind. 165. ■'Carthage Tpk. Co. v. Andrews, 102 Ind. 138, 1 N. E. 364, 52 Am. Rep. ()53. In a proceeding to set aside a will on the ground of the mental in- capacity of the testator to execute it, an instruction to the jury, that the testimony of the testator's neighbors, who had long been acquainted with him, and who had frequent opportun- ities of observing his mind, was en- titled to greater weight than that of witnesses of equal sagacity, whose op- portunities were more limited, was in- correct. Cline V. Lindsey, 110 Ind. 337, 11 N. E. 441. Where a physician is present, in his professional capac- ity, when a testator makes his will, knowledge and information obtained then and there as to the sanity of the testator is privileged, and cannot be brought in evidence, unless such priv- ilege is waived; and the same is true of communications to the attorney who drew the will. Gurley v. Park, 135 Ind. 440, 35 N. E. 279. *" Bower v. Bower, 142 Ind. 194, 41 N. E. 523 ; Schouler Wills, § 209. § 541 CONTEST OF WILLS. 975 with the testator as to enable him to form an opinion of the tes- tator's mental condition, it is the duty of the trial court to permit such opinion to be expressed, and to go to the jury for whatever it may be worth. *^ § 541. Contest of foreign wills. — The original act relating to the filing, recording, etc., of foreign wills made no provision whatever for contesting the validity, and resisting or setting aside the probate of such wills, or of the certified copies thereof when produced in the proper courts of this state. ^- But by an act sup- plemental thereto, afterwards approved, the following statute was enacted : "In all cases of foreign wills and testaments heretofore admitted or hereafter to be admitted to probate, or which have been or may be offered for record and filing in any county of this state, any person interested in the estate of the testator may con- test such will or testament within the time, in the manner, and for any or all the causes prescribed by the laws of Indiana in cases of the contest of domestic wills: Provided, That nothing in this section shall be so construed as to allow the contest of any foreign will which may have been probated, or filed and recorded, in any county of this state, more than three years before the com- mencement of such contest."^^ By reference to such original act it will be seen that provision is made for the production in the courts of this state for the filing and recording of foreign wills; first, where the original will itself duly certified, etc., is produced, and secondly, of copies of such wills and the probate thereof duly certified, etc.** And it is held that the above quoted statute is, in its terms, applicable only to the first mentioned case, wherein the original will is itself pro- duced, either for filing or probate. The court says : "It is certain that this supplemental act does not, in express terms, provide for contesting, in the courts of this state, a foreign will, when a copy " Surgart v. Willard, 166 Ind. 25, Id fordsville Trust Co. v. Ramsey, — N. E. 755 ; Blume v. State, 154 Ind. Ind. — 98 N. E. 177. 343, 56 X. E. 771 ; Rarick v. Ulmer, *^ Harris v. Harris, 61 Ind. 117. 144 Ind. 25. 42 N. E. 1099; Craw- ^ Burns' R. S. 1908, § 3158. ■" Harris v. Harris, 61 Ind. 117. 976 INDIANA PROBATE LAW. § 54 1 thereof and the probate thereof, duly certified, etc., may be of- fered therein for filing and record. The constitutionality of said act, as it reads, is at least questionable ; but if it provided for con- testing, in the courts of this state, a foreign will when a certified copy of such will and the probate thereof in the proper court or any other of the United States, was produced therein for filing and record, it is clear, we think, that such a provision would be in violation of both the letter and spirit of the first section of the fourth article of the constitution of the United States, which re- quires that : Tull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of ever}- other state.' "-'= In another case the court, in commenting upon this decision, says : "It goes much farther than we are required to do here, for it denies the right to attack in any method and for any cause. It is possible that the decision we refer to attaches greater force to the fourth article of the federal constitution than it is entitled to receive under the decisions of the Supreme Court of the United States ; but, however this may be, we think it quite clear that the present attack cannot be successful."^" The attack in this case was a collateral one, and for this reason was unavailing. But in a later case our Supreme Court says : "When a foreign will devises real estate situate in this state, and a copy of the same and the probate thereof, duly authenticated, is presented under our statute for filing and recording, that any person mentioned in said section may contest such proceedings, and if the foreign will is also admitted to probate or filed and recorded, such person may contest the same, within the time prescribed by said section. So far as Harris v. Harris, 6i Ind. 117, may be deemed to hold to the contrary as to a will devising real estate, the same is over- ruled. Such contest, if successful, has no effect on said will or the probate thereof in the jurisdiction where probated, but only prevents the will operating on real estate in this state, and leaves ^'' Harris v. Harris, 61 Ind. 117. ** Winslow v. Donnelly, 119 Ind. 565, 22 N. E. 12. § 542 CONTEST OF WILLS. 977 it to be governed by our statute regulating the descent of real property."*' § 542. Decree of court, its effect, costs, etc. — If the deter- mination be against the validity of such will or the competency of the proof, the court shall refuse or revoke the probate thereof ; but if it be in favor of the validity and due execution of such will, probate thereof shall be admitted or ratified.*^ But the final determination of such cause against the plaintiff shall not debar any other person from contesting such will within said three years.*^ Whenever the probate of any will shall be revoked as herein provided, the clerk of the proper court shall record such revoca- tion in his record of wills and probate thereof, and attest the same, and shall cause a notice thereof to be served by the sheriff on the executors or administrator with the will annexed, if letters shall have been issued, and cause notice thereof to be published for three weeks successively in a newspaper printed in his county, if one shall be printed therein, and the expenses for the record, notice, service thereof, and publication shall be taxed as a part of the costs of the proceedings against the party liable for the costs under the determination of the court in which the same shall have finally been determined.^" If such cause be decided against the defendants therein, the court may make such orders as to the payment of costs thereof as it may deem just.^^ The estate of a decedent may be properly charged with the rea- sonable expenses of the executor of such decedent, in an unsuc- cessful effort made by him in good faith to resist the contest of a will.'^^ But where the executor himself is also a beneficiary under the *" Evansville &c. Storage Co. V. Win- "Burns' R. S. 1908, § 3161; Whit- sor, 148 Ind. 682, 48 N. E. 592. tenberger v. Bower, 158 Ind. dlZ, 63 ** Burns' R. S. 1908, § 3160. N. E. 307. *» Burns' R. S. 1908, § 3157; Cornell == Roll v. Mason, 9 Ind. App. 651, Zl V. Goodrich, 21 Ind. 179; Kinnaman v. X. E. 298; Bratney v. Curry, ZZ Ind. Kinnaman, 71 Ind. 417. 399; Harrison v. Warner, 1 Blackf. ■"Burns' R. S. 1908, § 3162. (Ind.) 385. 978 INDIANA PROBATE LAW ^543 will attorney fees paid In- him in a contest of the will should be apportioned between him and the estate he represents." The taxation of costs in such suit is, however, by this statute left very much within the discretion of the trial court.^' If the contest is successful it prevents the admission of the will to probate where none has been had, and revokes and sets aside such probate if one has been made.^'' And if a will be adjudged invalid it is void for all purposes.^^ § 543. Appeals. — Any person affected by the proceedings of such court may appeal or prosecute a writ of error to the Su- preme Court from either, and may assign errors upon matters of fact and law.'' but so much of this section of the statute as au- thorizes an ai)peal from a question of fact is rejiealed by the pro- visions of section 696, Burns' R. S. 1908."' The determination of the Supreme Court upon such writ of error, or upon such appeal, shall be certified back to the court from which the writ was prosecuted, or the appeal taken, with directions as to what orders the court shall make in the premises."* Pending an appeal in an action in which the will has been set aside the court may appoint a general administrator to have charge and care of the estate in controversy for final administra- ■"Roll V. Mason, 9 Ind. App. 651, 2>7 N. E. 298 ; Clement's Appeal, 49 Conn. 519; Martin's Appeal, 81 Pa. St. 263. "Stevens v. Stevens, 127 Ind. 560, 26 N. E. 1078. '''• Curry v. Bratney, 29 Ind. 195. In this case the court says : "The statu- tory proceeding for trying the question of the validity of a will does not, it seems to us, involve any question as to whether the will has been admitted to probate. It may be instituted be- fore probate or after. In either case it raises simply the question of the validity of the will. In the first case the contest, if successful, prevents the probate, while in the last it revokes it. It attaches itself to and becomes a part of the proceedings of the probate, so that if the will has been previously admitted to probate, the court takes judicial notice of that fact; if it has not been admitted, the judgment rests without action until the will is offered for probate, if it has not been of- fered." '" Leach v. Prebster, 39 Ind. 492. " Burns' R. S. 1908, § 3163. . "* Coffman v. Reeves. 62 Ind. 334. "■" Burns' R. S. 1908, § 3164. 543 CONTEST OF WILLS. 979 tion, and this, too, although a special administrator had previously been appointed pending the litigation/** Only matters of law can be assigned as error on an appeal from a proceeding to contest a will.*'^ "" Hayes v. Hayes, 75 Ind. 395. The court says in this case: "An appeal does not annul a judgment; the ut- most effect it can have, even when ac- companied by the proper auxiliary proceedings, is to stay the enforce- ment of the judgment appealed from. There was, therefore, no reason why the court did not have full power to appoint a general administrator at the time letters were granted to Mat- thews." •''Wait V. Westfall, 161 Ind. 648, 68 N. E. 271. UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 791 625 7 UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. SEP 7 1973