Mefford v. Lamkin

76 N.E. 1024, 38 Ind. App. 33, 1906 Ind. App. LEXIS 176

• Court: Indiana Court of Appeals
• Decided: February 21, 1906
• Docket: No. 5,597
• Status: Published

Opinions

Roby, C. J.

Suit by appellant to set aside final settlement of an estate under the provisions of §2558 Burns 1901, §2403 B. S. 1881. It is averred in the complaint that appellant was the sole heir of Martha J. Handy, who departed life March 30, 1900, intestate; that appellee, Lamkin, was appointed administrator of her estate, qualifying and entering upon the discharge of said trust; that on November 8, 1901, he filed his verified final report, by which it was shown that he held for distribution the sum of $475.13, and that he himself and David Devar were the only heirs at law of said decedent; that he took and converted said sum to his own use and that of said Devar; that on December 11, 1901, the court heard and approved said final report; that appellant was not summoned or notified to appear at the hearing, and did not appear thereat, and had no knowledge thereof. The issue was formed by a general denial. Trial and finding for defendant. Motion for new trial overruled, and judgment on the finding.

1. When the administrator filed his final report showing the balance for distribution, and notice thereof was given in accordance with the statute, the court thereby aequired jurisdiction over the matter of the distribution of such surplus as an incident to final settlement. Jones v. Jones (1888), 115 Ind. 504, 510; Sherwood v. Thomasson (1890), 124 Ind. 541; §2561 Burns 1901, §2405 R. S. 1881.

2. Upon statements contained in said report, the administrator procured a judgment which is conclusive, so long as it remains in force. Its effect is the same whether the fund be retained by the administrator and paid out by him, or paid by him to the clerk, as was done in Jones v. Jones, supra, and in the case at bar. The term “final settlement” comprehends a payment of the balance so as to leave nothing to be done to complete the trust. Dufour v. Dufour (1867), 28 Ind. 421.- When the case last cited was decided, there was no statute authorizing the payment of moneys into court for distribution, as there is at present. §2557 Burns 1901, Acts 1883, p. 151. 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 administrator. In either event the judgment is conclusive against collateral attack and a bar to recovery of a distributive share by an heir omitted therefrom. Carver v. Lewis (1886), 105 Ind. 44.

3. No substantial basis for the finding and judgment of the court is given. “The hearing of claims to the surplus of an estate is usually very summary and informal.” Jones v. Jones, supra. It was clearly enough proved — admitted indeed — that appellees had no legal claim to the surplus, and that the statements relative thereto contained in the verified final report were unwarranted. Whether the administrator divided the money between himself and Devar, or procured such division to be made by the clerk, is immaterial. The conversion is equally complete in either event, and for it he is in either event equally responsible.

Judgment reversed, and cause remanded, with instructions to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent herewith.