
    Matter in Estate of A. E. Phelps, Deceased, Allen C. Phelps, Heirs, etc. v. Daniel Martin.
    
      Defaulting Executor.—Where an administrator or executor has been removed, he cannot be proceeded against by attachment on account of money of the estate used in his business before the removal, when he does not attempt to conceal the facts. The object of the law was only to effect a discovery and restoration, and not to punish for what can not be compensated. For any amount misappropriated or used, but not concealed, the sureties on the administration bond are liable in a civil action.
    Filed June 24, 1881.
    Appeal from Marion Circuit Court.
   Opinion of the court by

Mr. Justice Woods.

The appellant filed in the circuit court the following petition:

In the matter of the estate of Allen E. Phelps. Now comes Allen C. Phelps, son and heir of Allen E. Phelps, deceased, and herein complaining of Daniel Martin, says that heretofore on the — day of February, A. D., 1876, said Daniel Martin was duly and legally appointed in Marion county, Indiana, executor of the estate of said deceased ; that, as such executor, he received and collected of moneys belonging to said estate the sum of $10.183^¾; that, afterwards on the — day of ——, 187-, said Martin was by this court removed from his said trust; that, during the time he was acting as such executor, he laid out and expended on behalf of said estate the sum pf $4,501 ⅜¾-; that, at the time of his removal from said trust, he had in his possession belonging to said estate the sum of $5,682⅜⅛; that said Martin has ever since his said removal unlawfully and without right retained and concealed, and yet retains and conceals from this court and from Thomas Cottrell, administrator de bonis non of said estate, the sum of $5,682^⅛, money belonging to said estate. Wherefore affiant prays that said Daniel Martin be attached and brought into court, and there examined, under oath, touching said money. He further prays that all the property, both real and personal, belonging to said Martin, or in which he has any interest, be attached and held subject to the order of this court after such examination. He further prays that in case said Martin refuses to deliver up said money, or secure the value thereof to the proper person, together with ten per centum damages thereon, he may be committed to the county jail until the order of this court be complied with,” which petition was signed and sworn to by the petitioner.

The court issued a writ of attachment against the person of the defendant, which was duly served. The defendant filed two paragraphs of answer, which the appellant moved to strike out, on the ground that an answer was not allowable in the case. This motion was overruled, and saving an exception, the appellant demurred to each paragraph of the answer. This demurrer was overruled to the second paragraph and the exception saved. Issue was joined by a reply in general denial, and upon a trial by the court there was a finding and judgment for the defendant, discharging him from custody, and for the recovery of his costs of the appellant. Counsel for the appellant, in support of their claim that the case is not one which admitted of an answer by the defendant, except on oral examination under oath, cite the case of Williams v. Tobias, Adm’r, 37 Ind. 345. But if that case is good law and in point to show that the defendant had no right to file an answer or special plea, it also shows that the refusal of the court to strike the answers out, if erroneous, was a harmless error. As in that case, so in this, “ the answers, demurrers, motions to strike out and the replies will be regarded as stricken from the record.” See also Ex Parte Walls {last term).

We are not prepared, however, to assent to the proposition that in this and in like cases, and in proceedings, such as was Williams v. Tobias, supra, to remove an administrator under section 22 of the act concerning the settlement of decedents’ estates, the defendant may not rightfully, by special pleas, or by answer in denial, tender or form issues of fact, to be tried as such. This is the natural, if not necessary, inference from the 188th section of that act, whereby the right of trial by jury is given “ in all cases where there is an issue of fact.” There is no express provision to the contrary, and in natural justice it must be permitted that the administrator may deny any charge brought against him, whether like the one now before us, or made under section 22 of said act, in order to effect his removal, or if he can admit the charge and plead in avoidance, he may do that. These are the recognized modes of forming issues of fact for trial, and the giving of the right of trial, implies the right to put the case in shape for trial. See McMahan v. Works, 72 Ind. 19, (last term.)

The second paragraph of answer was to the effect that upon the petition of certain of the sureties upon the defendant’s bond as such executor, the court had revoked his letters and had removed and discharged him from said trust, without ordering, or theretofore having ordered, him to account for or to pay over any money or property to the court or to any person; that he accounted to his successor in said trust and delivered to him all the property and assets of said estate, except said sum of $5,682^^, for which immediately after his appointment as administrator de bonis non, said Cottrell brought suit against this defendant and his bondsmen, and on the 20th day of May, 1877, recovered against them a judgment for $6,463-^%, including the statutory penalty, of which sum and judgment $4,950 have been paid, and execution is in the hands of the sheriff to enforce the payment of the remainder • that shortly after his appointment as such executor, he collected said sum of $5,682j^ upon claims due said estate, and being engaged in a business which he supposed to be profitable, and supposing that he owned property of the value of $20,000 over and above his indebtedness, and would be able to replace said money whenever necessary, and intending so to do, he used the same in his said business; but that by reason of unforeseen business disasters, and without any concealment or embezzlement, he had lost, and was unable to restore said money, and has no money or property with which to satisfy the residue of said judgment.

This prosecution, as the appellant claims, is brought under section 161 of the act concerning the settlement of decedents’ estates, which provides: decedent, the court shall attach his person and property, and examine him under oath touching such property, and on his refusing to answer in such examination, or to deliver up such property, or secure the value thereof to the persons interested in such estate, with ten per centum damages thereon, shall commit him to jail until the order of the court is complied with or he be discharged according to law. ”

“ Sec. 161. In addition to removing him, if any executor or administrator shall embezzle or conceal any of the property of the

Strictly construed, this section does not apply to the case of one who has been removed from his trust and is no longer an executor or administrator. Perhaps, however, it may be construed in connection with section 30 of the same act, which provides that, “ Whenever any executor or administrator is removed and his letters are superseded, if he at any time afterwards unlawfully in-termeddles with such estate, he shall be attached and imprisoned, not less than ten days, nor more than one month, by the proper court of common pleas, upon complaint of any one interested.”

The petition charges that the defendant, without right, retained and concealed, and yet retains and conceals, said sum of $5,682.61 belonging to the estate, and this if true, constituted such an inter-meddling, after removal, as brought the case within the scope of the section last quoted. The answer however is a complete defense ; for it shows that whatever wrong had been done was fully accomplished before the removal of the defendant from his trust; that; since the removal of the defendant he had not had the money in his possession or control, had not concealed and had no power to restore it, nor means with which to secure its restoration. While this does not exonerate the defendant and his bondsmen from liability to make good the amount of his defalcation, it does constitute a good defense against this procedure. When an administrator or executor is both delinquent and recalcitrant, refusing to answer questions, or to surrender assets or moneys of the trust, within his control, or to give security within his power to give, for the making good of his delinquency, the court may well exercise its undis-putable power to enforce its orders by imprisonment, but this power was not designed to go further, and to be used as a punishment for past offenses. The object of the law under consideration was to effect a discovery and a restoration, but not to punish for what could not be compensated. Ex Parte Wright, 65 Ind. 504 and cases cited. •

Cropsey & Wright, for appellant.

The defense set up in this answer was sustained by such evidence as forbids an interference with the finding on the score of want of evidence.

Some exceptions have been saved to rulings of the court in admitting and excluding evidence, but the questions presented are of minor importance, and whatever view might be taken of them could not be deemed to have effected the merits of the trial.

The judgment is affirmed with costs.  