
    (Sixth Circuit-Huron Co., O., Circuit Court
    Nov. Term. 1895)
    !->dS.ejLdbner,,iHaynes,,angjKjpgfj
    
      CATLIN, et al. v HUESTIS, Ex'r.
    
      WJ¿éré}till'’á!ábti'' ópHeémséd/-ár)¡: fitíiú 'Vij^th'é'ipm'tiés',eÁPitUU^'to'>t}íé'¿ o i tedíate,'iw. ■ ú$$imimsíí>:atpr// slwviltli ¡ bhiapp.qlntepf'-qntl ¡ nwnqyi smkn í&a i,¿áW'b,éfeíi'¿kid tíyí lSi’é^p8ríjifes'feniííi]llddP’fiolWÍ0t¥fifid feiláy ífhevtfe'iSis litis? therriílli off fchei dw easedqithUije iismo p4ee@sf|5Tí6orS(flri‘'Hdícni^isf'T íütefe? S-fflTOÍfF fe?)99g np faMMfftWRFiR ; até qij encourage proceedings uncjer t^e directio(n( of the probate^ court’fór‘the1 adihirfistratioh o'f ‘árdéstaté nbi’th'ó'éfspenditiiréf^clf8 íOmbifé^íéft bjOdsGe'ased pa'rtiGs 'fdrithb"niters)fdrhís!®f 'adiü>ikt'steB¿fi ■•f-.iin'ginEÓP aj^epta-t^,; , •. ,¡,.i 1%
    
      Tombstone — When ujot .;a proper charge against the estate of ,the cl©,-., i->! >jtw Ji moo íuotí ->t¡: 0(1 ■>>'.)runonr :rn;-;i nüijonftr? .mi ceased’.' 'V\> ’ 'i ) ■’ i 7,
    
   'GcRiéNBE,‘''!J.

L’inbWa*’ ¡u fí"'Er'Oaílin^W^B!' datlin, Éffie f Catlin as guardian of Bert Catlin, Glen Catlin, Verna Catlj^ and Claud Catlin, minors, have instituted proceedings in erroyi^ th.is.qqurt agajnsj; Jonathan Huestis as executor . of the last will and testament of Elias W. Coit, deceased, by which it is sought to reverse the judgment which was rendered., in, favor of,. the.'defehááh in'error ¿gainst'the plaintiffs in eryoriin, the^oijy.t 9f,ppnajgon( plg^spf-H,uajpn,po(u:qtj;t ,n.M.,

It ¡seems; from ¿he. record:in the c.asertbat ¡theopla-intiffs in-n error instituted 'proceeding's i® the'' cour f of; leómiüo® ¡pléás o against one Emefy^'CarptenteY; by !vdi?cli!r'thb pi'á'imffifs!,U!’ through-'theii? gtordiahjSought tó'establish ¿heir íriig,Ht';toLfhe sum of two-lrdndrecl-doll'arsp claimed‘ifo i-be-in fhe’v bandfe of»;-' the ■defendant, Carpenter,'‘to'-which; ¿s ¿he plaintiffs Maimed',’>u through'¿he-ib guardian, they Weré'teütitletl.MM'; .¡n!"!,. : •

The petition in the tiase'alleges’that the plaintiff, Minerva^ ¡ Catlin,'is ¿he dídy;áppo’iüted and'qualifiedgü’aífdiaíifof Berti"' Catlin';''Gl'en'Catlitóv'Verüa OatlimsndíCl&'ud'Catlinpminors, ni Thepetitibn proceeds'further to • allege •; that on-Abe Mfb'óf o May,"1887, one' Elihs'-Wl'Colt "died'7testate,;; leaving adast-c .will ahd téstaiñeútpWhich*'áftéir:his death'was dnlyndmi-ttedLl to píóbate in said'county of-'Huron,uafad a’Cópy qif which last. will' an d testaineh’t is* hereto afta o'h'é'd cm arked1 ‘ ‘ Exhibit ¡A'/; ?;; » and5-fully seffórth in the petition and Co'ntainspas is averred, sc thé’follówinguláuse': i • ■- "i"-" l.';- -■ í,>.jíiM

‘‘I give and devise to’my two’ daughters, EÍlenVnd &árah'' U the farm oh which'wé1 hów live'¿fatf reside1,1"sitttále fín'Fair''11,1 ions'iandiall.oth.er gopds.and .chattels which,;nipynjpe thpr.eqii,-,-; at thp.-time,of,(Imy.,decease,, during..tpeir Mtur.al. lives,. a$ aforesaid. All my just^and'lawful debts sÉall be paid from the said estatep goods and chattels,' and likewise'my''fúnerá'l 11 exp’ánse^.' ' '.’.¡.íMíí:'.;; ;’v 'i -• <Ir11 ííl¡ :■ -i'Jl*;
‘■‘likewise;51 further"bequeath-Go tbemyrny''daughters;• •: Ellen and Sarah, my expectations, coming to me from my late grandfather's estate, now in the hands of the executor of the same, of New London, Connecticut, for final settlement. ”

The property or estate here referred to by the executor as “my expectations,” constitutes the principal subject matter of this controversy.

“At the death of my two daughters, the real estate aforesaid and such part of the said personal property or the proceeds thereof as may remain unconsumed and unexpended, I give and bequeath to my grandchildren, sons and daughters of Victor and Minerva Catlin, the same to be equally divided among them at the death of my two daughters.”

The petition then avers that “subsequent to the death of said Elias W. Coit, moneys of the said Elias W. Coit’s estate, which moneys had been received by said Coit as his “expectations coming to him from his late grandfather’s estate, ’ ’ and being a part of the same money referred to in said will as “iny expectations coming to me from my late grandfather’s estate, now in the hands of the executor of the same, of New London, Connecticut,for final settlement, ” duly came into the hands of, and were received by his two daughters, Ellen and Sarah, mentioned in said will, from Elias W. Coit’s said estate and under and by virtue of said will. Said moneys or fund to the amount of two hundred dollars was, on or about the 5th day of Ocober, 1887, loaned by said daughter Sarah (whose real name was Sarah M. Coit), to defendant, Emery Carpenter, said Sarah M. Coit at the time taking from said Emery Carpenter his promissory note for the same, by which said Emery Carpenter agreed.to pay to said Sarah M. Coit said sum of two hundred dollars one year from date, with interest at the rate of six per cent per annum. A copy of said note is not here given, the same not being in the possession of, or accessible to, plaintiffs. Subsequent to the time of giving said promissory note, on the 21th day of November, 1892, said Sarah M. Coit died intestate, and on the 27th day of November, 1892, said Elias W. Coit's daughter, Ellen, mentioned in said last will and testiment, and whose name at the time of her decease was Ellen Cooper, died intestate, leaving said fund of two hundred dollars so loaned by said Sarah M. Coit to said Emery Carpenter in said Carpenter’s hands entirely unused and unexpended, and leaving said promissory note wholly due with interest thereon from the 5th day of October, 1892, said fund and money so owing by said Emery Carpenter at the decease of said Sarah M. Coit and Ellen Cooper being the same fund and money so specifically bequeathed by the said will of said Elias W. Coit as his ‘expectations’ from his grandfather’s estate.”

Then the petition proceeds to aver that the said plaintiffs, “H. E. Catlin, W. B. Catlin, Effie Vennard, Bert Catlin, Glen Catlin, Verna Catlin and Claud Catlin are the children of Minerva and Victor Catlin, mentioned and referred to in the said last will and testament of said Elias W. Coit, and by virtue of said will they are entitled to said fund of two hundred dollars and the interest thereon, which fund is still in the hands of defendant, Emery Carpenter.

“Plaintiffs further say that at the October term of the court of common pleas of said county of Huron and State of Ohio, on or about the 16th day of December, 1893, in an action or proceeding then pending in said court of conmmon pleas under the style of ‘In the matter of the exceptions to the inventory and appraisement of Stephen L. Cooperas administrator of the estate of Sarah M. Coit, deceased',’ and in which action or proceeding H. E. Catlin, W. B. Catlin, Effie Vennard and said Minerva Catlin were the exceptors, and defendant Stephen L. Cooper, as administrator of the estate of Sarah M. Coit, deceased, was the adverse party or defendant, the rights of these plaintiffs in and to said fund of two hundred dollars and interest (then and ever since being in the hands of defendant, Emery Carpenter), under and by virtue of the said last will and testament of said Elias W. Coit, were by the court heard and adjudicated, and said court of common pleas then and there, after full and complete hearing found, among other matters, as follows, to wit:

(R),- TR# the .$$00,.QO $ote ;1in,clu.ded-iníthe ijnyeptpfy jjijijadep.jhejhea^ ‘ Scj}ed;u,R! Rí„.,gs e^pepted fq .Ry.ipidjphildrpn . of Minerva and. Victor Oatlih, as being improperly included ‘’in such inventoryJ whs éxecute'd’Ho' said1 SaráR’M.'‘Coit .‘By 'Hh'é E,‘; Gi'Cáfpen'tér, dní'or about"the 5thlday;óf Ócto-beír, 'lx88»7', and the ¡principal;of The.'same¡ and ® portion-bfiThe-.Mjteresjt.'Wiaa¡never.paid to^eyiused-by said Sarah M.i-Ooit, .and ‘i9,<?w-.-ffiWns¡i^tac,t(, iu¡! .......

(2)fi That the $200.00 for which .said.note was..given, 'was received' by said Sarah M?.' Coit from the estate of Mias 'Coit', ’her"father,''u'nd'ór an'd by virtue'df:his l'áfet 'will'Rn'd ^¡iíéSthm'bM,-' and'uhder'knd-subjeckto The following provisions ‘thereof,"¡Torwit; ; (Quoting from -t-he-¡<will;;and':provision!I rR.aye alypftdyiread.) ... ... . ,x , . .. ;;...

“(3) The court proceeds in that .case to. fjiid (thah said S^rah M. Coit left no unpaid debts ’ except as ’hereinafter mentioned',1 and’no'pari of said'fund of two hundred dollars •iá'tíecessáry to' be'tkken to-pay'fhe same. •

f K5^hd,;^laíntiffá further-'sayTh&f' thereupon'-knd-'- in;'’said 'prdcdddin'g pr’áfetión,' thb’skid ddu-rt mkde thbfóllowíh'g-órdóf, RB!wfE:' ‘That ’said’'note’of $200100i'eke'cuted by' said Oár'jíóntét, 'bb stricken frbm -skid' fin véntoryahd -appraisement/

’“Plaintiffs;sdy that fit1 the May* téírin df- the 'circuit;"6'óüft of said Huron coiihty,-Oh'ibf'ifi the1 yfeár' 1894, fni kn actidn M which 'said1-Stephen uL. Cooper, as administrator :bf ' the ■e'Siktewf Sarah.Mu Coif,'¡deceased1,; was. plain tiff in errorcand ¡said Miherva'Gatlin, Hv E.-'Catliny W.-B;>Catlin and'Effie ¡Ventoard werevdefendants.'-in1 error,■•saidxcircuit ¡courty after a full’ and-complete’ hearing of said action-.in©rrorpaffirmed ■the¡said¡findings,¡-judgment andx'order¡of said court- of! com-Wen pleasy' which. findings ¡or- decision,¡..judgment and -.©rater -Were the subject ¡matter of,’, and'were assigned for -error ¡in s&id¡action in said circuit court/’> m - ¡" • r m.- 'A

H The petition'then proceeds’to aver that'Me amount df sái'd 'if ■ o*f.j,' *s<y ^ If. ,{ * . * f: ,j^th. .Ras. acprugd tljprgoiijfro^ dpy. qf, ..October ,1§QP, is-Rue/p tRb plRntifR,, qnd.jjidgmeftt isi,prayed>a¡ccordinglyvfi ¡ m.-mr-»»: i- vini n ¡ •«!

-■¡''i-Phb'fe-is'-attSChed To Tfre ■petit-ion’;a's an bxhibifa C0py!bf íhb vViíl 0!f’Me^deCedbiit,'Elias W: Coit, knd’in it:fs found -trr.< • ,1)11! !¡r f uí; mi. i'-jj. umirui. • o --¡ire: fipdau^e:!, ..... ’llC 1/M]

“I do hereby nominate and appoint the present master of the Masonic lodge, located at North Fairfield, and his successors in office, my executors of this my last will and testament, hereby empowering them to see that my last will and testament is fully carried out and all business of the same is fully attended to, and it is further requested that no bail or security shall be demanded by the probate court, trusting all to their honor and integrity.”

Thereupon Emery Carpenter, the defendant in this action, appeared and 'filed an answer in the nature of an interpleader, in which he set up the fact that one Jonathan Huestis, who is executor, as he says, of this will, appointed by viftue of the clause of the will to which I have just called attention, claiming that he is entitled to administer upon said sum of $200.00, and he prays that he may be made to appear and maintain or relinquish his claim.

Thereupon, on the 6th of August, 1891, the court of common pleas passing upon this answer in the nature of an interpleader, of defendant Carpenter, setting up that this man Huestis, as executor, makes claim to the fund, ordered Carpenter, the maker of the note, to pay the money, the sum of $200.00, with interest from October 5, 1892, into the hands of the clerk of the court, and that in default of such payment, execution issue therefor, and that the clerk hold the fund subject to whatever final order may be ultimately made in the case.

It appears that the executor, Huestis, filed an answer and cross petition in the case, setting up the making of the will, and setting up that it had been duly admitted to probate by the probate court of Huron county, and that letters testamentary had been issued thereon to him, and praying that the court make an order that the fund should be paid to him, and setting up in his answer and cr'oss-petition that there are just and lawful debts existing against said estate of Elias W. Coit, amounting to about $69.00, a schedule of which is hereto attached marked ‘‘Exhibit A;” also the costs of administration of said estate, and the court costs already necessarily incurred and due to Judge G. T. Thomas, amounting to $7.16, and he says that said decedent left no other personal property or effects to his knowledge with which ■to pay said debts and costs, and he prays judgment that the money be paid to him, including interest, and that he may have such other and further relief as may be proper and just.

There is attached to this answer and cross-petition a schedule showing the outstanding liabilities as claimed by him, and this is the schedule: “Schedule of the debts of the estate of Elias W. Coit, so far as the same have been presented for allowance: Estate of Ellen A. Cooper for witness fees paid to Emery Carpenter and George W. Coit, at probating the will of Elias W. Coit, $4.00; Stephen L. Cooper, monument purchased for Elias W. Coit, deceased, $65.00 total $69.00. And he says in his answer and cross-petition that there is $7.16 due the probate judge for further fees in the business.”

There was a reply filed to this answer and cross-petition of the executor, by the plaintiffs in the proceeding, in which, in brief, it is set up that it is admitted that Huestis was appointed as claimed by him, by the probate court, and that he is qualified to act; that the $200.00 note mentioned and described in plaintiffs’ petition, is in his possession, and that he demanded payment of the same from said defendant, Carpenter; that payment was refused by said Carpenter, and for want of information, defendant denies each and every allegation in the answer and cross-petition alleged. And they say specifically that if the alleged claims mentioned in said Huestis’ answer and cross-petition, and constituting “Exhibit A” attached thereto, ever existed, they are now barred by the statute of limitation's, more than s‘ix years having elapsed since they were made.

The executor replied to this allegation, making an issue of the statement made in his answer and cross petition.

■ The court of common pleas, at its April term, 1895, tried 'the case, a jury having been waived, and upon the trial, found in favor of the cross-petitioner, Huestis. The court found specifically that the debts alleged to be due to the estate of said Elias W. Coit, as appears in said cross petition, to wit: $05, $4.00 and $7.10, have been presented to said executor for allowance, and have been by him duly allowed; that the $200.00 note and interest thereon, mentioned in said pleadings, and the proceeds resulting from the payment of the same by defendant, Emery Carpenter, to the clerk of this court, made on the Gth day of August, 1894, recorded in volume 22, page 170, of the journal of said court, are assets of the estate of said Elias W. Coit, deceased, and the said Huestis, as executor aforesaid, is entiled to said fund, •and it is ordered that it be administered by him.

A motion for a new trial was filed and overruled.

There is appended to the record a paper purporting to be ■an agreed statement of facts, and a copy of the agreed statement of facts appears in the bill of exceptions, which is as follows: <_

"It is conceded by the parties hereto, that the following facts are true: ‘That after the death of Elias W. Coit which occurred on or about the 9th day of May, 1887, his •will which is set forth in the petition, was duly and properly probated, and that his daughters, Ellen A. Cooperand Sarah M. Coit, referred to and mentioned in the will, receive the entire property of Elias Coit, according to the terms of the will; that they settled and paid all the claims and outstanding debts against the estate of Elias W. Coit, of which they •knew, or of which the defendant now known, except the alleged claims hereinafter stated; that after the death of the said two daughters of Elias W. Coit, and the appointment •of Stephen L. Cooper, as administrator of the estate of Ellen A. Cooper, he presented to Jonathan Huestis the claims alleged in the answer of said Huestis after the time of the appointment of said Huestis as executor herein. Said alleged claims have not been paid. The ■children referred to in the petition are the children of Victor and Minerva Catlin, referred to in the will of Elias W. Coit .án'd-Minerva Catlin is their-- duly appointed and qualified -.guardian. It is.further conceded that on or about November .1, 1893, Stephen'!/. Cooper, mentioned in plaintiff’s petition and defendant Huestis’ cross petition herein, purchased of Tyson Brothers of Plymouth, Ohio, a granite-monument as per contract hereto attached, the same to be set over the graves of Sarah M. Coit, Ellen A. Cooper (wife of Stephen), and Elias W. Coit, which graves were together in the same cemetery. Such monument was inscribed with the names of Ellen A. Cooper, wife of Stephen L. Cooper, Sarah M. Coit-, sister of Mrs. Cooper, and Elias W. Coit, the'father of Mr. Cooper’s wife.
2. “That prior to November 1, 1893, Ellen A. Cooper died intestate, leaving Stephen L. Cooper, her husband,, as1 her only heir at law, and leaving. property to be administered to the amount of about $1,300, which came to her from a former husband.
3. “Stephen L. Cooper was appointed and duly qualified as administrator of the estate of Ellen A. Cooper prior to November 1. 1893, and said estate was not settled prior to said November 1, 1893.
4. “Said Stephen L. Cooper paid Tyson Brothers for said monment from moneys in his hands which would belong to him as heir of his wife, which came into his hands-as aforesaid from the above mentioned estate of his wife.’r

It will be seen by this statement of facts which is made and somewhat prolonged and perhaps unnecessarily so, that the claim of this executor under this will and the right and power to administer this estate, rests almost exclusively upon the claim made in the casein his behalf that there were debts outstanding to the extent of $69 for the grave stone and $4 for probating the will, together with some $7 and some odd cents for the services of the probate court in further proceeding in administering the estate.

It was ruled by this court substantially upon the trial of the case as it came here in a former proceeding, under the authority of the 46th Ohio State, 391, and the 30th Ohio-State, 288, supplemented by a case since reported in the-51st Ohio State, 446, that there was no necessity, as the-[facts apppari la this case, for-an administrator or, an ex;ecu,tpr ..tOrclose;.np;;fhis estate,-.- It appeared - safisfaQtory, to.f-the j.ep]irt - ¡uppn fhat-,,.hearing,;, that-, spbstsnti&lly all;outstanding .debts had been paid bydhe parties ¡entitled,, to. the f;und under ¡the.-terms pf... the, ¡will, of. th,e deeeaspdv. Mr. Coit, ,a¡ad ,,tfee icourts,¡qlp nof;tolerate, -or ¡encourage, proceedings -unde-ir-tbe. ...ddLeptjpn.pf. the probate£cpurt, for ¡fb¡e -administration of¡ .an jestates, nor the, expenditure,pf,money, left by depended parties [for th.e mgfp fpims-pf administering, upon,an estate. ■; • r

j,H:In.this;C.ase-it'WOuId(,,appear, and.ft is.not opnfra.venediby i anything.stated ,here0-.thatnthe,debts dpe from this,estate had ib.een.paidj -or.at¡least substantially paid,.,,-The debtlhat#8 set up here as one of the-.debts pfvthjei.estate-for.th.e-purchase tof;®,-tombstone,, th.e recordpatlgfaqtorrily shpws.js n.ot>ardebt ¡¡of the estate-of.the. decedenf. --.v.i-fs' • • -u

i i T-h-e-statute doesrnot .make any provision ¡for ¡the .payment pf;!s®e.h'ra. debt. -. Seetipn 6185 says:. The- court may.$l§P, ¡.omsettlement, .allow, as a,credit, tpft-hemxecutqr qriadmjpisrtrator, any tjust andl .reasonable, amount expen.ded.by ¡him for -autom-bstone of monument for .the deceased.; but-It, shall not be,.incumbent.pn any .executor,or-administrator,¡to procure a ..tombstone qr.¡monument..”; - , ...

*■., I®,other-words,-the statute empowers.an executor or an administrator . tP provide ,a monument.¡for-a deceased party with the consent and approbation of .the probate court, and .where, that, has ¡been .done,; he is warranted and authorized in paying .from the -assets,.of t¡he estate for such monument. But ..this monument for which the claim is made here, was .not q®e y-hich.-was provided for by tbe administrator or the -exec-utor;: it was one that was provided by Mr. Cooper, the husband of the deceased, Mrs. Cooper, rather for his deceased wife than for the other parties interested in the estate, and Mr. Cooper could not undertake, either with or without the authority and consent of the probate court, to charge upon the little fund remaining of the assets of this estate, any part of that expense. There was no authority by or from the probate court to provide that monument. The probate court could not have conferred any authority upon the executor to erect a monument under such circumstances and charge the expense upon the estate, unless it might be argued perhaps that the executor might contribute with other parties in providing a monument for several members of the family, including the deceased testator. But that was not done; there is no pretense that anything of that kind was done. So that, leaving out of view what should be done with the item of charging for the providing of a monument for this deceased Mr. Coit, there remains just simply the expense that was incurred in procuring the probating of the will; that was all there was of it. There was no necessity whatever, so far as appears in the record in this case, for the appoinment of this executor; there were no debts to be paid; there were no duties to be performed. This $200 was in the hands of Emery Carpenter whose note was outstanding for the amount, and these children by their guardian were seeking to enforce the payment of it by some means — what means we are not advised. This man Huestis, master of masons for the time being, and coming perhaps within the terms and provisions of the will, places himself under bond as executor to take charge of this' estate and administer upon this fund.

Our conclusion is, that the appointment of this administrator was wholly uncalled for and entirely unnecessary. The case is covered directly, we think, by the reported decision in the 46th Ohio State, where it is held that moneys or devices such as these were, may be claimed directly by the legatees or devisees without passing into the hands of the executor; or, if it fairly appeared that there were creditors who were entitled to be paid, it might be necessary, upon the failure of the devisees or legatees to make payment-where an administrator was appointed, for the executor to claim a fund from which to pay the debts that were set up, if any there should be. But here there are none set up that are entitled to any notice or recognition; none that would warrant a party appointed as executor by the probate court to claim and hold and administer this fund as against the children to whom it was devised. The result of our views in this particular is, that the judgmexxt of the court of common pleas in this respect should be reversed, and the case will be remanded to the court of common pleas with directions that the fund be paid to the proper parties.

G. Bay Craig and Andrews Bros., for plaintiffs in error.

Stewart & Boioley, for defendant in error.  