Cullop v. City of Vincennes

Roby, P. J. On April 1, 1898, the administrators of the estate of Charles Graeter, deceased, had in their'hands $28,000 of the moneys of said estate, and refused to return the same for taxation, saying that a settlement was soon to be made. The assessor thereupon assessed said money to said administrators for taxation in accordance with the provisions of the statute. §8461 Burns 1901, Acts 1891, p. 199, §51. On May 16, 1898, said administrators filed a final settlement report. Notice was given and the same was set for hearing on June .16. Prior to that day the treasurer of Knox county and the treasurer of the city of Vincennes each filed petitions asking the court to require the administrators to pay the taxes assessed on said property for the year 1898. Said administrators demurred to each of said petitions; the court sustained the demurrers; and, declining to plead further, a judgment was rendered that the petitioners take nothing. Thereupon said report showing distribution was-approved, and the estate declared finally settled. On June 4, 1900, appellant was appointed administrator de bonis non of said estate, and on September 9,1901, filed his final report, showing that he had collected $479.33, and had on hands for distribution $362.98, which report was set for hearing on September 30. On October 5 following, appellee filed an instrument in form (omitting the caption and verification) as follows: “Estate of Charles Graeter, deceased, William A. Cullop, administrator de bonis non. To the City of Vincennes, Indiana, Dr.: To taxes on personal property for year 1898, $409.24.” This instrument was filed in the clerk’s office of the Knox Circuit Court, and was signed and sworn to by the treasurer of the city of Vincennes. Appellant refused to allow the claim. It was placed on the trial docket. He filed an [669] answer in two paragraphs, the first of which was a general denial, and the second, a plea of former adjudication. Appellant replied in two paragraphs, the first of which was a general denial; it being averred in the second that when the prior judgment set up in the answer was rendered, the tax was not due, and that it has since become due and is unpaid. The cause was tried by the court, evidence introduced, finding and judgment against appellant for $409.25, from which judgment this appeal is taken. 1. It was the duty of the administrators to list for taxation property in their possession on the 1st day of April. §§8420, 8421, subdiv. 10, 8460 Burns 1901, Acts 1891, p. 199, §§10, 11, 50, §8459 Burns 1901, Acts 1895, p. 21, §2. 2. A claim or charge for tax is not required to be filed against an estate, but it must be taken notice of by the administrator or executor and paid without being filed, and if he proceeds to settle the estate finally without the payment of such tax claim, he does so at the peril of having such final settlement set aside. Taxes are not claims which the law of this State either requires or intends shall be filed against the decedent’s estate. The duty rests upon the administrator or executor to pay the tax. Graham v. Russell (1899), 152 Ind. 186. 3. The administrator is a creature of the law. He reports to and is under the supervision of the circuit court. It is his duty to pay the taxes due upon the property of his decedent. In case of his neglecting to pay any instalment of taxes when due, when there is money enough on hand to pay the same, the county treasurer “shall present to the circuit or other proper court of the county * * * a brief statement in writing, signed by him as such treasurer, setting forth the fact and amount of such delinquency, and such court shall at once issue an order directed to such delinquent, commanding him to show cause within five days thereafter why such taxes and penalty and costs should not be paid.” §8587 Burns 1901, Acts 1897, p. 226. Such [670] statement may be made by tbe city treasurer, who is required to perform the duties devolved upon tbe corresponding county officer. §8672 Burns 1901, Acts 1891, p. 199, §254; §3621 Burns 1901, §3160 R. S. 1881. 4. While tbe tax upon property assessed in April, 1898, was not due in the. following June, yet tbe court, having bad its attention called to tbe fact that such assessment bad been made, should have directed tbe administrators to retain sufficient funds to meet tbe obligation upon its maturity. 5. A final settlement made without payment, or provision for tbe payment, of tbe tax 'is illegal within tbe meaning of §2558 Burns 1901, §2403 R. S. 1881, and it may be set aside for tbe purpose of compelling its payment. Graham v. Russell, supra. 6. Tbe failure of tbe court to protect tbe public interest in connection with such final settlement does not estop tbe State from thereafter collecting tbe tax. Tbe manner in which to procure tbe discharge of a tax lien was forcefully stated in tbe opinion delivered by Judge Jordan in tbe carefully considered case of Beard v. Allen (1891), 141 Ind. 243 : “Robbing short of tbe payment of taxes, interest and penalties can serve to discharge or release tbe property of tbe owner charged therewith from tbe liability imposed by tbe statute.” Graham v. Russell, supra. 7. The administrator de bonis non has tbe same powers possessed by tbe original administrator, and is governed by tbe laws for tbe settlement of decedents’ estates. §2395 Burns 1901, Acts 1891, p. 107; Barnett v. Vanmeter (1893), 7 Ind. App. 45; Wahl v. Schierling (1895), 11 Ind. App. 696. 8. Upon tbe filing of tbe verified statement by tbe treasurer, a rule to show cause should have issued against appellant. In answer to such rule, it devolved upon him to establish the illegality of tbe alleged tax, or such other facts as might be relied upon to justify its nonpayment. Tbe “taxes assessed upon any property in this State shall be [671] presumed to be legally assessed until the contrary is affirmatively shown.” §8642' Burns 1901, Acts 1891, p. 199, §224; Brunson v. Starbuck (1904), 32 Ind. App. 457. This is the procedure contemplated by §8587, supra,. The expressions indicating a different practice contained in the opinion in Lang v. Clapp (1885), 103 Ind. 17, are not germane to the facts presented in that case. The decision was not rested upon them, and they do not correctly express the law as applicable to the section as amended in 1897. In the opinion it is stated that the statute requires the county treasj urer to set forth the facts in his written statement. In the section as it now stands he is required to set forth “the fact and amount of said delinquency.” Those who take property, real or personal, upon the death of its owner, take by virtue of the.law and through the favor of the State. That they should in return refuse to pay, or pay grudgingly, a tax essential to the maintenance of government and the enforcement of law is an ideal illustration of ingratitude and cupidity. The practice followed in this case was incorrect, but the right result was reached, and the error in the mode of procedure was therefore harmless. Gray v. Robinson (1883), 90 Ind. 527-532; Logan v. Kiser (1865), 25 Ind. 393. The cases cited in argument by the appellant’s learned counsel are not in point. Many of them were decided prior to the adoption of the statutes relative to taxation now in force, others relate to the special assessment of omitted property, and in none of them was the duty of an administrator to pay taxes assessed upon funds in his hands as such administrator involved or considered. .Judgment affirmed. Black, C. J., Robinson and Comstock, JJ., concur. Wiley, J., dissents. Myers, J., not participating.