Morton's Administrator v. State

Davison, J. This was an action by the State on the relation of William Brumfield, Abigail Hunter and others, heirs and legatees of Thomas Brumfield, deceased, against John 'O-vUehett, administrator de bonis non, with the will of said deceased ‘vtiILexed5 and William S. T. Morton, the surety of Pritchett on his administration-bond. The bond is conditioned in the usual form, for *** discliarSe of the duties of the administrator. —■ The complaint alleges these facts { Thomas Brumfield died in 1841, leaving a will, whichwas in that y ^ duI7 admitted to probate. This will is made a part of the com^aín^ and contains these provisions: “It is my will that my db!^®> funeral expenses, &c., be first paid, and that all the rest and residue of my estate, real and personal, be sold, and when converted into money, I devise and bequeath the same as follows : 1. To my nephew, Thomas Brumfield, I bequeath 1,000 dollars. 2. After the payment of all my debts and expenses, and legacy above named, it is my will that all my estate remaining, be divided into ten shares, which I devise and bequeath thus: To each of my nephews, William, Jesse, Benjamin, John and Samuel Brumfield, one share each; to my neices, Mary Barret, Hannah Hunter, .and Abigail Hunter, one share each; to the heirs of the body of my niece, Nancy Gilmore, one share; and to the heirs of my niece, Diana Hodges, one share.” On the 21st of June, 1847, Pritchett was appointed administrator de bonis non, with the will annexed, and gave band with one John JS. Dunham as his surety. After this, on the 29th of January, 1859, Dunham, the surety, having left the State, and having been absent therefrom more than eight years, Pritchett, by order of the Wayne Common Pleas, exe= cuted a new administration bond, being the same now in suit, and upon which said Morton is surety, At the Afril term* [200] 1859, of that Court, Pritchett, as administrator, having been, on motion of the present relators, ordered by the same Court to do so, made a final settlement of the testators’ efctate, whereby it appears that after the sale of the land mentioned in the will, and all the debts, expenses, and legacy of 1,000 dollars therein named, were fully paid by the administrator. There remained in his hands a balance of 1,845 dollars for distribution among said legatees and heirs, under the provisions of the will. It is averr&á that the relators, prior to the commencement of this suit, demanded of said administrator the sum so in. his hands, but he refused payment, and has converted and disposed of the same to his own use; and further, it is averred that he has failed to use due diligence in collecting the claim due the estate, and has failed in taking solvent security for moneys arising from the sale of the decedent’s property. Wherefore judgment is demanded, &c. The defendants demuiredto the complaint; but their demurrer was overruled, and thereupon they answered by a general denial. The issues were submitted to the Court, who found specially as follows: 1. That the relators are the legatees of the will of Thomas Brumfield, deceased. 2. In the year 1847, John Pritchett was appointed administrator de bonis non with the will of said deceased annexed, gave bond, and entered upon the duties of the trust. 3. That John B. Dunham, the surety on said bond, having removed from the-State, Pritchett, on the 29th of January, 1859, by order of the Common Pleas Court of Wayne county, gave a new bond, with William, 8. T. Morton as his surety. 4. 'On the 29th of April, 1859, Pritchett, as administrator, made a settlement of the decedent’s estate, and filed his account current in said Court; by which he charges himself with a final balance of assets belonging to said estate, after the payment of all debts, charges, and allowances, of 1,845 dollars. 5. That of the balance so charged against the administrator, 400 dollars was then due from one [201] John P. Doughty on a judgment long previously rendered; also, there was another charge of 1,231 dollars, which was money that had been received by one John Jack, as agent of the administrator, on lands sold belonging to said estate; which sum the said Jack had been permitted to convert to his own use, prior to the filing of the bond of Pritchett with Morton, as his surety, and which sum had never been in the' hands of said administrator since the execution of said bond. 6. That the residue of said 1,845 dollars, viz: the sum of 214 dollars, was in the administrator’s hands on the 29th of April, 1859, the date of said settlement. 7. Pritchett, the administrator, after the' filing of the bond with Morton as security, and before the bringing of this suit, could have collected the judgment against Doughty, by reasonable diligence; but he negligently failed to do so; But since this suit was commenced, Doughty has paid the same to Pritchett, amounting to 414 dollars, which is now in his hands. The Court, therefore, found against Pritchett and Morton jointly, as follows: Balance on hand, April 29, 1859,......................... $214 00 Interest on the same to date,.............................. 10 00 Amount received of Doughty,............................. 414 00 Interest on same from October 1,1859,.................. 10 55 $648 55 Ten per centum on the above,.............................. 64 86 $713 31 Against Pritchett alone, the Court also found thus: Amount converted by John Jack,.........................$1,231 00 Interest from the 29th of April, 1859,.................. 63 39 $1,294 39 Ten per centum on the same,............................. 129 45 $1,423 84 O. P. Morton, J. F. Kibbey, J. S. Newman and J. P. Siddall, for the appellants. Thomas Means, for the appellees. The defendants severally moved for a new trial; but their motions were overruled, and final judgment rendered upon the findings, &c. The causes for a new trial are thus assigned: 1. The overruling of the demurrer to the complaint. 2. The finding of the Court is unsustained by the evidence, and is contrary to law. 3. There is no evidence that the plaintiffs are the legatees named in the will. 4. The findings are for too large a sum. The action of the Court iu overruling the demurrer, though assigned for error, is not noticed in the appellant’s brief, and will not, therefore, be noticed in this Court further than to say that the complaint appears unobjectionable. See Rule 28, Ind. Dig. 122. The 2d and 3d assigned causes for a new ti’ial, as we have seen, relate exclusively to the sufficiency of the evidence. "We have carefully examined the ovidexxce, axxd are of opinion that it sustains the special findings of the Court. Ror do we perceive any ground for the conclusion that the general findings are excessive. It is contended: 1. That the Court erred in findixxg jointly, axxd rendering a joint judgxnent in favor of the relators. 2. That it was ex'ror to find severally, and render several judgments against the defendants. These alleged errors are not available; because the points which they involve do not appear to have been presented in any foxm to the consideration of the lower Court. Indeed, it is xxot vexy easy to see how a joint, instead of a several judgment, in favor of the relators, can in aixy degree affect the rights of the defendants. And the sevex’al judgments against them, are authoxized by the code. 2 R. S. p. 121; Douglass v. Howland, 11 Ind. 554. Per Curiam. The judgment is affirmed, with 5 per cent, damages and costs.