Bowen v. Stewart , 128 Ind. 507 ( 1891 )

Berkshire, J.

This was an application to remove an administrator. The decedent had been for many years a citizen of Carroll county, and died a citizen thereof on the 10th day of February, 1890, intestate, leaving, as his only heirs, his widow, Catherine J. Bowen, and his children, Abner T., Nathaniel, Edward, and Henrietta T. Bowen, and Mary Busey, who are the appellants.

On the 3d day of April, 1890, the appellee was appointed by the Carroll Circuit Court the administrator of the estate of said decedent, no one having taken out letters of administration upon said estate antecedent thereto.

The application to remove the appellee was not antagonized by motion, or demurrer, and hence we need not stop to inquire whether, conceding all that is alleged therein to be true, it disclosed any sufficient cause for the appellee’s removal, except to state that none of the causes given in the statute for the removal of an administrator are stated. Section 382, Elliott’s Supplement.

It alleges that on the day of the appointment, and before it had been made, the court had been adjourned for the day, and until 8:30 A. M. of the next day, and, upon request, the judge caused the sheriff to reconvene the court; and thereafter, and while court was thus in session, the appointment was made, the clerk being present when the appointment was made.

The judge had the undoubted right to cause the court to be opened, and thereafter to transact any business that might properly come before it.

The adjournment of the court was a mere intermission, for, in contemplation of law, court was in session during the term fixed by law, or until its final adjournment. Stefani v. State, 124 Ind. 3. During the term the court might control, in a proper manner, its own sittings. Wartena v. State, 105 Ind. 445.

The appellee filed an answer to which a demurrer was filed and overruled, and the appellants reserved an exception.

The appellants moved the court for a change of venue from the county, which was overruled, and they reserved an exception ; they then filed a motion for a change from the judge, and this motion being overruled they saved an exception. The cause was thereafter submitted to the court for trial, and after hearing the evidence a finding was returned for the appellee, and over a motion for a new trial judgment was rendered refusing to remove the appellee, as the administrator of his said trust.

The answer is very lengthy and we will not undertake to give even the substance of the averments contained therein.

It is sufficient to state that the facts therein averred disclose abundant reasons for the appointment of an administrator to administer upon said estate at the time the appellee was appointed. It further appears from the averments therein that neither the widow nor the children had any intention to take out letters of administration.

More than twenty days had elapsed after the death of the decedent before letters of administration were issued to the appellee, to wit, fifty-two days. ' Under the statute in force when the appointment was made, either the clerk of the court or the court itself might make an appointment after twenty days, and appoint any competent inhabitant of the county. Section 2227, R. S. 1881.

The appellants were not entitled to a change of venue nor to a change of judge.

A proceeding to remove an administrator is a proceeding summary in its character, to which the statute providing for changes of venue and change of judges does not apply.

Besides, the appointment 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 supervision might be destroyed by the filing of an affidavit for a change of venue, or for a change of judge.

If the appellants were entitled to a change of venue, or change of judge, then the appellee was so entitled; and if an administrator 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. An application to remove an administrator is very much under the discretion of the court. Wallis v. Cooper, 123 Ind. 40; Whitehall v. State, ex rel., 19 Ind. 30; Williams v. Tobias, 37 Ind. 345. And 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 administrator has theretofore performed his duties.

We have examined the case of Scherer v. Ingerman, 110 Ind. 428, cited by counsel for appellants.

In that case the administrator filed his petition to sell real estate for the payment of debts, and the litigation was between him and a remote grantee of some of the heirs, as to whether the real estate was subject to sale for the payment of debts; the litigation in that case under the issues was much nearer akin to an ordinary civil action than the proceeding under consideration, and we may. here remárk that we are not inclined to extend the doctrine of that case.

If an administrator is entitled to a change either 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. As we have said, in our judgment, no such right exists.

But it is claimed that the appellee, as treasurer of Carroll county, because of the fact that said county is insisting that it holds a large claim against said estate for unpaid taxes due to the county, has such an adverse interest as against the estate as to render him an improper person to administer upon the same.

But it appears that his term as treasurer will expire before collection can be made and pass into the county treasury. But if not, it was the duty of the appellee to look after the unpaid taxes due to the county, and as no one had taken out letters of administration upon the estate, under the circumstances developed it was very proper for him to do so, as he was the representative of an alleged creditor, that was but an artificial person to whom letters of administration could not issue.

The statute does not regard a person whose financial interests may be advei’se to the estate of a decedent as incompetent to administer upon the estate if otherwise a suitable person to be charged with the duties of the trust. Wright v. Wright, 72 Ind. 149. Upon the other hand preference is given to the largest creditor next after the next of kin. Section 2227, R. S. 1881. And ample provision is made for the protection of the estate when the adverse interest of the creditor comes in question. Elliott’s Supp., section 389.

Filed Jan. 9, 1891.

We have examined the evidence, and in our opinion it supports the finding of the court.

The court did not err in permitting the appellee to prove that there were unsatisfied mortgages of record upon real estate in Carroll county, held by the decedent in his lifetime ; it was a circumstantial fact which the court might consider in determining as to the necessity for an administration of the estate.

The wish of the decedent, communicated to his son, that his estate should not be administered upon, was a mere hearsay statement, and could have no controlling influence with the court in the exercise of its discretion as to whether or not the appellee should be removed from his trust, hence, there was no error in excluding testimony as to such expressed desire.

It is hardly necessary to say that the testimony offered as to the custom of the Carroll Circuit Court in the appointment of administrators was whollv immaterial and impertinent.

We find no error in the record.

Judgment affirmed, with costs.