Barnett v. Vanmeter

33 N.E. 666, 7 Ind. App. 45, 1893 Ind. App. LEXIS 213

Opinions

Reinhard, C. J.

Daniel Barnett, the appellant’s decedent, in his lifetime, recovered a judgment in the Jackson Circuit Court, against the appellee Vanmeter. The latter appealed to the Supreme Court and executed an appeal bond, with the other appellees as his sureties. The Supreme Court affirmed the judgment. This action is by the appellant as administratrix de bonis non of said Daniel Barnett’s estate, and seeks the recovery of the penalty on such bond, the breach thereof being duly alleged in the complaint.

The appellees answered in three paragraphs. The first of these, which was the general denial, was withdrawn. A demurrer was addressed, severally, to the second and third paragraphs, and overruled, and this ruling constitutes one of the errors assigned and relied upon for a a reversal.

The second paragraph of the answer alleges, in substance, that the appellees admit the execution of the bond mentioned in the complaint, but say that the said Daniel Barnett died in Washington county, Indiana, on the 5th day of October, 1888, intestate, and that afterwards, on the 3d day of November, 1888, one George W. Barnett was, by the circuit court of said county, appointed administrator of said Daniel Barnett’s estate, and, as such, gave bond and qualified, and said George Barnett, as such administrator, fully administered said estate, and on the 7th day of December, 1889, made and filed his final report and settlement of said estate in said court, and the same was, after due notice, heard by said court, on the 24th day of December, 1889, and was then and there approved by the court, and said estate adjudged finally settled by the court, and that said George W. Barnett was discharged from his trust as such administrator; that said judgment remains of record in said court, and is in full force and effect, and has never been appealed from. Wherefore, defendants demand judgment, etc.

The appellant insists that this paragraph of the answer is insufficient, and that the demurrer to it should have been sustained.

Prior to the 5th day of March, 1891, there was no law in force in this State under which an administrator de bonis non could be appointed for any decedent’s estate after the final settlement of such estate, unless such settlement was vacated or set aside. Pate, Exec., v. Moore, Admr., 79 Ind. 20; Croxton v. Renner, 103 Ind. 223.

Were it not for the act of the General Assembly of the above date, we question very much the validity of the appellant’s appointment and her right to maintain any action as administratrix de bonis non; but whether in that case the mode of challenging the appointment here adopted would be the proper one, is quite another question, for it is settled law that the validity of the appointment of an administrator can only be questioned by a direct attack. Ferguson v. State, ex rel., 90 Ind. 38; Jenkins, Admr., v. Peckinpaugh, 40 Ind. 133.

The act referred to provides that “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, remains unpaid, or of any person entitled to share in the distribution 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 in all things by the laws now in force or that may hereafter be enacted for the settlement of decedents’ estates.” Acts 1891, pp. 107, 108.

By the passage of this act, it was doubtless intended to reach any assets, for the benefit of creditors, legatees, or heirs which had not been administered upon in the former administration.

Under the former law, after final settlement, a period of three years was allowed any person interested in the estate to have such final settlement set aside ip the proper court, upon a proper showing of illegality, fraud or mistake in such settlement, or in the prior proceedings in said estate. R. S. 1881, section 2403.

Failing in this, the person was without remedy, unless he was an heir or legatee and the claim came to him through the estate. Under the present law, a creditor, heir, or legatee, upon proper showing, even after the lapse of three years, and without any attempt first to open the final settlement, may have the court appoint an administrator de bonis non, for the purpose of collecting such unadministered assets and applying the same to the payment of debts or legacies, or for distribution to those entitled to receive the same. .

When the court determines from the facts shown that there are assets available which have not been before reached, it will make the appointment of the administrator de bonis non, and such administrator then proceeds in all respects as other administrators or executors in the settlement of the estate.

If, among the assets not administered, there should be a chose in action, such as the one in suit here, which is due from any debtor to the estate, the administrator de bonis non may institute suit and recover whatever may be owing from such debtor, and the latter is entitled to the benefit of all defenses that would be available to him in any other action for the same demand.

The appellee’s contention is that the paragraph under discussion is a plea of former adjudication.

As such, is it sufficient?

It is doubtless true that the final settlement of an estate by an administrator upon such notice as the statute prescribes is an adjudication of all matters' properly involved in such settlement. Carver v. Lewis, Admr., 104 Ind. 438.

If it can be said that this rule inures to the benefit of a debtor of a decedent, it must be because the claim against such debtor had been duly inventoried and administered by the executor or administrator, and in some-manner passed upon by the court in the settlement of the estate. Whether it may be said that a claim has. been administered upon in any case, when it still remains1, due and unpaid, we need not decide. We think it must be admitted, however, that unless such claim has been at least in part subjected to the process of administration, it can not be claimed that it has been adjudicated. If the claim was not inventoried, reported, or in some way involved in the administration, certainly no one could justly contend that there had been an adjudication which bars the estate or personal representative of the decedent. If such a pleading as the one here presented could be upheld, even without the act of 1891, would it not devolve upon the defendant in such a suit to allege in his plea that the particular claim in suit had been fully administered upon? But as to this we need not decide; for we are of the opinion that the pleading which is here relied upon as an answer of former adjudication is nothing more nor less than an indirect or collateral effort to question the appellant’s right to maintain the action. If it is true that the estate had been finally settled, and if there was no law by which an estate could be opened up and an administrator de bonis non appointed, this would be a very good reason for revoking the appointment in a direct proceeding for that purpose; and, if the letters had not been properly issued, it might also furnish a ground for a plea in abatement.

There is no averment showing that the appellant or those she represents have ever had their day in court as to this claim against the appellees. The latter have' in no sense ever been sued upon the claim, and we do not see how it can be said to have been adjudicated.

Moreover, we think that even if the attack upon the validity of the appellant’s appointment and her right to maintain the action could be made in the manner here attempted, the act of 1891 has changed the rule as to appointments of administrators de bonis non, and that notwithstanding a former final settlement the claim would not be barred from future administration. If, under former laws, the estate would be debarred from ever suing upon such an unadministered claim, the act of 1891 was obviously intended to effect a change, and permit the estate to reap the benefit of such assets, notwithstanding the former settlement. It enables the parties interested to have the estate opened up, as to such omitted assets, and, if these consist of claims due the estate, to prosecute the same, and this, too, without setting aside the former settlement. It, in effect, provides that as to any assets not formerly administered the settlement shall not be final. Whether there are such assets unadministered or not, it devolves upon the court to determine when the administrator de bonis non is appointed. When the appointment has been made, the administrator, as we have seen, occupies the same position that a general administrator does. After the appointment, the same can not be attacked in a collateral proceeding, and every presumption will be in favor of its validity. If attacked in a direct proceeding for that purpose, the burden of showing the invalidity thereof will be upon the attacking party. Bowen v. Stewart, Admr., 128 Ind. 507.

In case of suit by him, he need only aver that he is the administrator, and need not make profer't of his letters, nor can his right to sue be questioned unless the defendant files a plea under oath denying such right, and such a pleading is in abatement and not in bar. R. S. 1881, section 2292; Nolte v. Libbert, Admr., 34 Ind. 163.

The paragraph we are now considering was not verified, and does not seem to have- been drafted upon the theory of a plea ip. abatement. In fact, it is the contention of appellee’s counsel that it is a plea in bar and was not intended as an answer in abatement. As an answer in bar, for the reasons heretofore stated, we do not regard it as sufficient.

But we are met by the further contention that the act of 1891 can not be made to apply to the case in hand, for the reason that that act was not passed until after the final settlement of the estate of appellant’s decedent, the final report having been approved by the court December 24, 1889, while the act of 1891 did not become a law till March 5, 1891.

It is argued that this statute can not be given a retroactive effect, but is purely prospective in its operation, and that it can not, therefore, be made to apply to any estates that were finally settled before the act became a law. While we do not think the plea would be good without the act of 1891, we are also of the opinion that the appellee’s contention with reference to that act is untenable. We think the act applies to estates of the character of the one under consideration.

Ordinarily, statutes can not be made to operate retroactively, unless a contrary intention clearly and strongly appears, if by making them so operate vested rights would be affected. Niklaus v. Conkling, 118 Ind. 289; Goodbub v. Hornung, 127 Ind. 181.

But this rule can not be invoked in cases where no new right is given or taken away, but only a new remedy is afforded for the enforcement of a right already existing. ' The main question in such cases is the purpose of the law, and, if necessary to carry out such purpose, the courts will construe it to apply to past as well as future transactions, unless by doing so vested rights would be impaired. Connecticut Mut. Life Ins. Co. v. Talbot, 113 Ind. 373.

In the case just cited it was said by Mitchell, 0. J.: “Statutes are to be construed and applied prospectively,, unless a contrary intent is manifested in clear and unambiguous terms. This is undoubtedly the general rule, and it is sometimes held that, to work an exception, the intent favoring retrospective application must affirmatively appear in the words of the statute. The better rule of construction, and the rule peculiarly applicable to remedial statutes, however, is, that a statute must be so construed as to make it effect the evident purpose for which it was enacted, and if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied, although the statute does not in terms so direct, unless to do so would ' impair some vested right or violate some constitutional guaranty.”

In the case at bar, it is not pretended that the appellees would, by the operation of the act of 1891, be divested of any right possessed by them. It is not claimed that the debt which it is alleged they owe the estate has ever been paid or in any manner satisfied by them or any one for them. The former settlement of the estate did not extinguish their liability; for, after the death of Daniel Barnett, the assets of the estate became the property of his heirs, subject only to the rights of administration. Citizens’ Street R. W. Co. v. Robbins, Admr., 128 Ind. 449.

This action was commenced on the 24th day of August, 1891, — at a time, therefore, when those entitled to the assets of the estate could still have had the final settlement opened and the claim collected .either by the original administrator or by an administrator de bonis non, independently of the act of 1891. R. S. 1881, section 2403.

The remedy afforded by the law of 1891 was, therefore, purely cumulative. To give such a remedy is clearly within the powers of the Legislature. Where there is an existing right, and the statute gives only a new remedy, the new and former remedies are cumulative, and either remedy may be resorted to. Toney v. Johnson, 26 Ind. 382; 7 Lawson’s Rights and Remedies, section 3777.

Filed Mar. 17, 1893; petition for a rehearing overruled June 10,1893.

Our conclusion is that the court erred in overruling the demurrer, to the second paragraph of the answer.

The third paragraph of the answer sets up substantially the same facts as the second, with the additional averment that the appellant was never appointed as administrator “by the court.’’ As we have seen', the administrator’s right to maintain the action as such could only be called in question by plea in abatement, under oath, which must precede the answer in bar. The averments as to the invalidity of the appointment do not aid the pleading. As a plea in bar, we think the third paragraph is equally as bad as the second.

Other questions presented may not arise again and need not now be considered.

Judgment reversed, with instruction to sustain the demurrer to the second and third paragraphs of the answer, and for further proceedings not inconsistent with this opinion.