Williams v. Tobias, Adm'r. not sane. Discovered it on going with him to Newport, Ky., to see a physician. On the way, the deceased forgot the business on which, and the place to which, they were going, until reminded of them by the witness. Other witnesses express opinions of the testator's unsoundness of mind, based on facts stated, some of which would be quite unlikely to occur with a man of sane mind. On the other hand, there is a good deal of evidence tending to show the testator's sanity. In this conflict we cannot disturb the conclusion arrived at by the jury on this point. There is no error in the record, for which the judgment can be reversed. The judgment below is affirmed, with costs. B. F. Claypool, F. Brown, and T. B. Redding, for appellants. 37 345 128 510 WILLIAMS V. TOBIAS, Adm'r. ADMINISTRATOR.-Removal.-Practice.—In a procceding to remove an administrator on the ground that he has failed to make a true and complete inventory of the estate of the decedent, no other pleadings are authorized than the sworn application. The only judgment the court can render is one removing or refusing to remove. The statute is simply mandatory, and the action of the court on the application is very much within the discretion of the judge. APPEAL from the Jennings Common Pleas. BUSKIRK, J.-This was a proceeding on the part of the appellant to remove the appellee as administrator of the estate of James Tobias, deceased, on the ground that he had failed to make a full, true, and complete inventory of the estate of the said decedent. The proceeding is based upon section 22 of the act for the settlement of decedents' estates. 2 G. & H. 491. The application was sworn to. The appellee filed an answer in eight paragraphs. The appellant demurred to some, and moved to strike out others, of such paragraphs, which Williams v. Tobias, Adm'r. were overruled, and exceptions were taken, when replies were filed. These rulings are assigned for error. We are of the opinion that, in such a proceeding as this, no other pleading than the sworn application is authorized. The answer, demurrers, motions to strike out, and the replies will be regarded as stricken from the record. The cause was tried by the court and resulted in a finding for the appellee. A motion for a new trial was overruled, and an exception taken. The evidence is embodied in a bill of exceptions. The evidence is very voluminous and conflicting. The trial seems to have been conducted on the theory that it was a proceeding to compel the administrator to account for the articles not inventoried, but such is not the case. The only judgment that the court could render in this proceeding was either removing or refusing to remove the administrator. When the administrator submits his report, the appellant or any other person interested in the estate can file exceptions to the confirmation of the report, or an independent proceeding may be instituted for that purpose. It is quite manifest, from the evidence, that the appellee failed to make a full and complete inventory of the estate of the decedent, but this seems to have been caused more by bad advice than from any intention to defraud the estate. The laws of Congress or the rules and regulations of the army can have no weight in the courts of this State in reference to the settlement or distribution of the estate of a person subject to the laws of this State. The estate of the decedent must be settled under, and in conformity with, the laws of this State. It is provided by the section upon which this proceeding is based that the court may remove an administrator for a failure to inventory the estate. It is not mandatory on the court. It is very much within the discretion of the common pleas court. It was said by this court, in Whitehall v. The State, 19 Ind. 30, that "when we consider the supervisory power of the pro Foy et al. v. The Board of Commissioners of Ripley County. bate court, which our common pleas is, over executors, administrators, and guardians, and the duty resting upon that court to vigilantly exercise it, taken in connection with the amount of personal knowledge in the premises, which the court will generally, as a matter of course, possess, it will at once be conceded that, in a doubtful case, this court should not interfere with the action of the court below." We think this case comes within the principle above laid down. The evidence is so conflicting that we would not have been inclined to interfere with the finding of the lower court if the administrator had been removed. We do not think there was such an abuse of the sound legal discretion vested in the court below as would justify us, under the rules and practice of this court, in disturbing the finding. The judgment is affirmed, with costs. H. W. Harrington and C. A. Korbly, for appellant. FOY ET AL. v. THE BOARD OF COMMISSIONERS OF RIPLEY COUNTY. COUNTY AUDITOR.-Delinquent List.-The county auditor was power to make a contract for the publication of the delinquent taxes; and where such contract is made, although the publication be not in time, yet if this results not from fault in the publisher, he is entitled to recover from the county on his contract. APPEAL from the Ripley Common Pleas. DOWNEY, J.-The appellants, the board having refused to allow their claim, sued the appellee to recover for printing and publishing the list of delinquent taxes. The defendant, in addition to other answers which were held bad on demurrer, pleaded, first, the general denial; and, second, that the newspaper of the plaintiffs in which the notice was published Foy et al. v. The Board of Commissioners of Ripley County. was not of general circulation in the county. After a denial of the second paragraph of the answer, the cause was tried by a jury, and there was a verdict for the defendant. The plaintiffs moved for a new trial, for the reason, among others, that the evidence was not sufficient to sustain the verdict. This motion was overruled, the plaintiffs excepted, and final judgment was rendered for the defendant. The evidence is in the record. We have examined the evidence, which is properly in the bill of exceptions (we cannot consider the original newspapers appended to the record as part of it), and think that a new trial should have been granted. The contract made with the plaintiffs by the county auditor, for the publication of the delinquent list, is clearly proved. The auditor had power to make the contract. The law intrusts that duty to him. 3 Ind. Stat. 518, sec. 143. The work was done; and though not done in the best style of the art, as shown by the evidence, it was done reasonably well, and to the satisfaction and acceptance of the auditor, as he testifies. The notice is dated January 9th, 1867, and it was inserted in the issues of January 9th, 16th, 23d, and 30th. The sale was to take place on the first Monday of February, 1867. If this publication was not in time to justify the sale at that date, we do not think the printer should, on that account, lose the pay for the work. He seems to have published it as soon as he could do so, after it was made out and furnished to him by the auditor. If the auditor was guilty of an omission or violation of duty in not preparing the list for publication in time, or in causing it to be published at such time as would not be legal notice of the sale, let him answer as to that. If it was necessary that the plaintiffs should make proof that the newspaper had general circulation in the county, after the auditor had made choice of it in which to publish the list, had made the contract, and the work had been done, then we think the evidence on that point was sufficient. A Jenkins, Assignee, v. Flinn. competent witness, who was acquainted with the facts, testified that the paper had subscribers in every township in the county, and that its circulation amounted to two hundred and fifty copies. Several other witnesses testified that the paper had a general circulation in the county.' The judgment is reversed, with costs, and the cause remanded, with instructions to grant a new trial, and for further proceedings. S. M. Jones, J. W. Gordon, T. M. Browne, and R. N. Lamb, for appellants. JENKINS, Assignee, v. FLINN. HUSBAND AND WIFE.-Agent.-Liability of Husband.-Where a wife engages in business, with the knowledge and consent of her husband, the business is regarded as that of the husband, and the wife is regarded as his agent, and he is bound for the performance of contracts which she may make relating to such business; but where the wife incurs the indebtedness, and the credit is given to her exclusively, and there can, therefore, be no presumption that she was acting as the agent of the husband merely, the husband is not liable. APPEAL from the Cass Common Pleas. DOWNEY, J.-This action was commenced by Thompson and McClellan, and after their bankruptcy, prosecuted by Jenkins, as the assignee in bankruptcy of their estate, against Elijah Flinn, the appellee, and his wife, Charlotte Flinn, before a justice of the peace to recover for goods sold and delivered. The defendants, having made default before the justice of the peace, appealed to the common pleas, where she pleaded, separately; first, the general denial; second, coverture, and that she had no separate property; third, coverture, and that she did not promise to pay the same out of her separate estate; and he pleaded, first, the general denial; second, that the goods were purchased by his wife without his : |
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