guardians of Wilma, should pay the costs, estate is pending. Section 2828, Burns 1914; attorney's fees, etc., in the consolidated suits Ditton v. Hart, supra, 175 Ind. 594, 95 N. E. referred to supra, or whether such costs 119; Wysong v. Nealis, 13 Ind. App. 165, 175, should be paid by them as executors out of 41 N. E. 388. We recognize that there are the fund provided by said residuary clause some exceptions to this general rule, among of the will. It will be seen therefore that | which is the one which recognizes that propthe real issues upon which this controversy er claims for taxes need not be filed. Graturns were issues which were in a sense collateral to the proceeding to sell, and which, to say the least, would have been tendered and presented to the court more properly in the manner recognized and prescribed by the statute, and if said issues had been so tendered, S. would not have been a necessary or proper party thereto.

ham v. Russell, 152 Ind. 186, 52 N. E. 806; Cullop v. Vincennes, 34 Ind. App. 667, 72 N. E. 166. This exception permitted the adjudication of the question of taxes covered by conclusion of law No. 3, supra, but not necessarily the inheritance taxes covered by conclusion No. 2, supra.

[13] We are not unmindful of the general [10] The fact that such issues were at- rule before indicated herein that in a petitempted to be tried in this proceeding under tion to sell real estate the executor reprethe agreement of the parties before referred sents the general creditors, as against the to could not change the relation of S. to such heirs, beneficiaries, and others interested in issues or to the judgment rendered thereon. the land sought to be sold (see cases cited It therefore becomes necessary, in determin- supra), and that such executor is not requiring whether there should be an absolute dis-ed to delay his petition to sell until all claims missal of appellants' appeal, to first deter-are filed, but that he may and should file such mine whether such issues could have been petition as soon as he ascertains and knows and were in fact properly litigated and ad- there are existing undisputed claims in exjudicated in this proceeding, because as to cess of the personal estate. Ditton v. Hart, such issues and the judgment rendered there- 175 Ind. 585, 593, 594, 95 N. E. 119. on S. would not be a necessary party, and if there is in fact a valid adjudication of such issues, appellants' contention that the motion to dismiss should be overruled as to that part of the judgment affecting such issues is correct.

[14] We also recognize that, when he files his petition to sell real estate, if the heirs or others who, under the will, have an interest in such real estate or the proceeds derived from the sale thereof controvert or contest the validity of any claim, the burden is on such executor as the representative of the general claimants to prove the validity of such contested claim. Riser v. Snoddy, 7 Ind. 442, 446, 65 Am. Dec. 740; Scherer v. Ingerman, 110 Ind. 428, 438, 11 N. E. 8, 12 N. E. 304. It seems, however, that even in such a case the executor may relieve his estate of such burden by notifying the claimant of the contest of such claim, and giving him an opportunity to come in and protect his claim. Scherer v. Ingerman, supra.

[11] As affecting these issues, it should be noted: (1) With reference to said inheritance tax, that steps had been taken in a proceeding brought for such purpose in the Howard circuit court to ascertain the amount of such tax with a view to its collection as provided by the inheritance tax law (Acts 1913, p. 79, being section 10143a et seq., Burns 1914), but it affirmatively appears from the finding of facts that such proceeding is still pending in the Howard circuit court, and that such court had neither determined such amount, [15] In any event the case of Ditton v. nor who should pay it, and that nothing Hart, supra, in our judgment, does not auhad been done therein except to refer the thorize or justify an executor in his petition matter to the appraiser appointed by the to sell real estate in tendering an issue on a court; and (2) as to the question of attor- claim which has not been filed, the validity ney fees, costs, and expenses of said con- of which is disputed by those interested in solidated suits, no claim had been filed the real estate sought to be sold, especially in against said estate therefor, nor had there cases where such executor is himself the been any petition for an allowance of such holder of or directly interested in the claim claim filed by G. & G., Ex., or by any one so sought to be collected off of such estate. else. G. & G., who had incurred and were To so hold would be, in effect, to allow such at least primarily liable for said attorney's an executor to shift the burden of showing fees, costs, and expenses, were in no sense the validity of claims upon such estate, and parties to this action as individuals. They in a sense permit him to represent both were parties as executors only, and as executors and individuals they are, under the law, the same as two different people. Powell v. Jackson (1916) 60 Ind. App. 597, 605, 111 N. E. 208, 211: Moore v. Ferguson (1904) 163 Ind. 395, 400, 72 N. E. 126.

[12] Generally speaking, the law contemplates and requires that all claims against an estate shall be filed for allowance in the office of the clerk of the court in which such

claimants and the heirs in the same action, because, as before stated, in the allowance of claims he represents the heirs and beneficiaries of the estate, while in a petition to sell he becomes the representative of the general claimants.

The record in this case before indicated clearly discloses that, as to the questions and issues involved in this litigation, G. & G. sustained three separate independent, and

in some respects inconsistent and antago|are in a position to complain of conclusion nistic relations, viz. the relation of executor No. 6. and executrix of said estate, their relation as

We have indicated the attitude of G. & G. individuals, and their relation as guardians relative to the questions presented by this apof Wilma. They were parties to the pro-peal, not alone for the purpose of showing ceeding in their capacity as executors only. that they are in no position to challenge the By succeeding in the trial court in having conclusions of law upon which their assignany inheritance tax found to be due the statement of error in this court is predicated, on account of the respective tracts of real es- but for the additional purpose of emphasiztate conveyed by L. F. to them and to Wilma ing and showing that a practice which gives allowed as a general claim against said es- rise to and makes possible the situation pretate to be paid out of the property given sented by this appeal is a practice to which by the decedent under the residuary clause the court cannot afford to give its sanction of her will, they would thereby relieve said and approval. respective tracts of land from the lien of said tax, and relieve themselves from the payment thereof, and by succeeding in getting an allowance of the claim for costs and expenses and attorney's fees connected with said consolidated suits involving the custody of Wilma they would transfer to said estate a liability which was primarily their own.

[18] Where the executor is himself the claimant against an estate, either in his own right or in a fiduciary capacity as the representative of some other person or estate, the law recognizes the inability of such executor to impartially act in both capacities and provides for the appointment of a special representative of the estate. Section 2839, Burns 1914. While this section in terms applies only to claims accrued before the

As to the inheritance tax, the trial court, by its second conclusion of law supra, held that the real estate embraced within the re-death of the decedent, yet section 2828 will siduary clause of the will supra could be sold to pay such tax, and by its sixth conclusion held that "the general estate is not liable for any of the costs, expenses, or attorney's fees incident to the litigation concerning the custody and guardianship" of Wilma, but that the entire interest of Wilma in said estate should be charged therewith.

[16, 17] G. & G., Ex., in their several assignments of error in this court challenge the sixth conclusion of law alone, and in their briefs they try to support the second conclusion, which charges the estate which they are supposed to represent with the inheritance tax, and attack conclusion 6, which relieves said estate from the payment of the costs, attorney's fees, etc. in said consolidated suits, G. & G. as individuals might very

be construed in connection with it, and the latter section applies to claims originating after as well as before decedent's death (Scott v. Dailey, 89 Ind. 477, 479, Tracewell v. Peacock, 55 Ind. 572, 574; Richy v. Cleet, 46 Ind. App. 326, 330, 92 N. E. 175), and specifically provides for the filing of claims by the administrator or executor, and the courts will in such cases supply a procedure akin to that provided by section 2839 where a claim is filed the defense of which is not specifically provided for by the statute (Hubbard v. Hubbard, 16 Ind. 25; Wright v. Wright, 72 Ind. 149, 150).

So, if in the instant case a claim had been filed by G. & G. against said estate on account of services rendered and expenses incurred by them in defending said consolidated suits,

it would have been the duty of the trial court

to appoint a representative to defend said bard, 16 Ind. 25; Wright v. Wright, 72 Ind. estate against such claim. Hubbard v. Hub

149, 150.

appropriately assume this attitude toward said conclusions of law, but as executors they are at least in a sense in no position to complain of a conclusion of law which is favorable to the estate, or to uphold a conclusion unfavorable to such estate. They are in no position to complain of that part of the sixth The interest of G. & G. as guardians of conclusion which attempts to charge the es- onistic to their interest as executor and exWilma was also inconsistent with and antagtate of Wilma with said costs, attorney's fees, etc., for either of two reasons: (1) Beecutrix. In some jurisdictions there is a cause they are not parties to this suit in statutory inhibition against the appointment their capacities as guardians of Wilma, and of a person as administrator who is the guardhence do not represent her as such guardian of the minor child of the decedent. Sudians; and (2) that part of the said conclusion attempting to charge the estate of said Wilma with said costs and attorney's fees is not carried into the judgment appealed from, and hence is harmless. White v. Chicago, etc., Co., 122 Ind. 317, 330, 331, 23 N. E. 782, 7 L. R. A. 257; Sphung v. Moore, 120 Ind. 352, 354, 355, 22 N. E. 319; Slauter v. Favorite, Guardian, 107 Ind. 291, 300, 4 N. E. 880, 57 Am. Rep. 106. It may also be suggested in this connection that, for the reason last

ler v. Sudler, 121 Md. 46, 56, 88 Atl. 26, 30, Ann. Cas. 1913E, 1191, 49 L. R. A. (N. S.) S60; Sawyer v. Knowles, 33 Me. 208, 210; Senseman's Appeal, 21 Pa. (9 Harris) 331, 334; Ex parte Crutchfield, 11 Tenn. (3 Yerg.) 336, reprint, citing Code Tenn. § 2489, enacted since that decision. In other jurisdictions such an appointment is held to be against public policy. Sudler v. Sudler, supra; Rickard's Case, 15 Abb. Pr. N. S. (N. Y.) 6–8; Ex parte Crutchfield, supra.

under consideration, we need not and do not that it does, we think it also shows that it hold that there is a law or authority in this was not properly adjudicated in this proceedstate which would prevent G. & G. from act- ing. As before indicated, the record shows ing in each of said respective capacities, but that the jurisdiction of the trial court over the attitude of courts generally towards fidu- such issue was never invoked in this proceedciaries acting in conflicting capacities as ex- ing in the manner provided by the statute, pressed in the decisions supra should have in- that the state was not represented in this fluence in determining the question under con- proceeding by any one upon whom the law sideration, and the fact that G. & G. as indi- imposes the duty of collecting such taxes, viduals and as guardians of Wilma sustained and the finding shows that such Howard cirrelations inconsistent with and antagonistic cuit court had obtained jurisdiction of such to their relations and duties as executor and matter in another proceeding before it, and executrix in the matter of the adjudication that, at the time of the trial of this proceedof the issues here attempted to be adjudicat-ing, such matter was pending, undisposed of, ed should have an important and controlling in said court. In this connection see section influence in determining whether a valid ad- 10143a et seq., Burns 1914. judication of such matters could be had in the manner and method here attempted, and whether the court should lend its sanction and approval to such manner and method of procedure.

It is our judgment that, whatever the rule may be in a proceeding of this character with reference to permitting the litigation and adjudication of an unfiled disputed claim (and this we need not and do not decide), such practice should not be permitted where the claim thus sought to be litigated is one in which the executor of such estate is personally interested, and that any attempted litigation of such a claim by such a method, where the claimant himself is not made a party, is of no effect and void for want of jurisdiction

over one of the parties interested.

[19] Going back to the question of said in heritance tax, the court by its conclusion of

law No. 2 concludes merely that the real estate embraced in the residuary clause of said will "can be sold for the purpose of paying such inheritance tax if any be found due" on said respective tracts, etc. This conclusion is not carried into the judgment, unless it can be said to be embraced in the following provisions thereof:

"It is therefore now adjudged by the court that the real estate • be sold at public sale to pay the indebtedness found due in said special finding of facts. The court further orders the payment of all legitimate crpenses of said estate the amount of which has not been found herein."

We therefore conclude and hold that, under the facts disclosed by the record and for the reasons herein indicated, the judgment herein, in so far as it attempts to adjudicate the unfiled disputed claims involving said inheritance tax and the attorney's fees, costs, etc., of said consolidated suits, is without force or effect.

It follows from what we have said that, in so far as the judgment herein appealed from is within the issues and valid, S. was a necessary appellee, and because of the failure of appellants to make her such their appeal

should be dismissed.

Before closing this opinion we deem it proper, and in fact our duty, to say that nothing we have said herein is intended as any reflection on the motives or good faith of the facts disclosed by the record, and espeG. & G. or their counsel. On the contrary, cially by the finding of the trial court, conthat G. & G. and their counsel have done what vinces us, as it apparently did the trial court, they did in perfectly good faith, believing that in so doing they were carrying out the desire of their testatrix as expressed in her will. Nevertheless we think the court cannot give its sanction to such a precedent.

The appeal is therefore dismissed without prejudice as to the question of said inheritance tax and the costs, expenses, attorney's fees, etc., of said consolidated suits, involving the care, custody, and guardianship of Wilma.

FELT, C. J., and IBACH, P. J., and CALDWELL, BATMAN, and DAUSMAN, JJ., con

We seriously doubt whether this record shows any adjudication of the question of said inheritance tax. Assuming, however, cur.

The state's attorney has a right to assume the truth of the evidence offered by the people. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 1670, 1671; Dec. Dig. 720(6).]

Error to Circuit Court, Mercer County;

Wm. T. Church, Judge.

Sidney S. Moore was convicted of assault with intent to commit rape and he brings error. Affirmed.

H. E. Burgess, of Aledo, Searle & Marshall, of Rock Island, and Albert E. Bergland, of Galva, for plaintiff in error. P. J. Lucey,

[Ed. Note. For other cases, see Criminal Atty. Gen., John M. Wilson, State's Atty., Law, Cent. Dig. § 3143; Dec. Dig. 1169(6).] of Aledo, and Jacob R. Creighton, of Fair3. CRIMINAL LAW 1932 field (W. J. Graham, of Aledo, of counsel), for the People.

VERDICT

Ac

QUITTAL. The verdict of guilty of an assault with intent to commit rape was to be regarded as an acquittal of the greater offense of rape.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 366, 387, 389, 394; Dec. Dig. 1932.]

CARTWRIGHT, J. The plaintiff in error, Sidney S. Moore, was convicted upon a trial by jury in the circuit court of Mercer county of an assault with intent to commit rape up

4. CRIMINAL LAW 1169(1)—APPEAL-HARM- on the person of Elsie M. Stoner, and was

LESS ERROR-ADMISSION OF EVIDENCE.

FENSES.

-

RAPE

A charge of rape included all its ingredients, so that a conviction under a proper state of the evidence might have been had for an assault, or for an assault with intent to commit rape.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. § 616; Dec. Dig. 191(8).]

6. RAPE 59(20, 21) · INSTRUCTIONS FENSES EVIDENCE.

sentenced to the penitentiary at Joliet. In a prosecution for rape, where the jury The following facts were proved and not would necessarily know that the father of the controverted: The plaintiff in error, Sidprosecutrix disapproved of the defendant, the admission of his statement to defendant that he ney S. Moore, was principal of the high did not wish to talk to him, etc., was harmless. school at Viola, in Mercer county, and Elsie [Ed. Note.-For other cases, see Criminal M. Stoner was a member of the senior class Law, Cent. Dig. § 3137; Dec. Dig. 1169(1).] of the school. On Friday, September 24, 5. INDICTMENT AND INFORMATION 191(8) 1915, the school was dismissed at about half OFFENSES INCLUDED LESSER OF-past 3 o'clock, and the principal, assistant principal, and scholars went to a picnic in a grove near the village, which the witnesses called a "wienie roast." After the picnic, at about 7 or half past 7 o'clock, the defendant and Elsie left the grove with a boy and girl who walked together and the defendant walked with Elsie. When part way to the vilOFlage the defendant remembered he had forgotten a ball glove which he had borrowed of a boy and had loaned to Elsie for a game of catch. She had thrown it behind a tree, and he asked if she would go back with him to get it. She said she would if the other girl and boy would go with them, but the others made some objection and the defendant and Elsie went back to the grove and found the glove. It was getting dark when they started back to the village, and they reached Ashenhurst's corner, in the business section of the city, about 8 or half past 8 o'clock, where they met the girl who had been with them and some other girls. Concerning the criminal charge, Elsie testified to an assault by the defendant on the way to the village which was successfully resisted, and after a short interval a further assault, when the crime was consummated forcibly and against her will, and the defendant did not testify. About six months prior to the picnic the defendant had a conversa

In a prosecution for rape where there was an admission that the evidence would justify a verdict of simple assault, and where there was evidence justifying a verdict of an assault with intent to commit rape, there was no error in an instruction permitting a conviction for those offenses and stating the law thereon and the punishment of each.

[Ed. Note. For other cases, see Rape, Cent. Dig. 99; Dec. Dig. 59(20, 21).]

7. CRIMINAL LAW 814(20) — INSTRUCTIONS -EVIDENCE.

Instructions should be applicable to the facts, and in a case where the evidence admits of only the conclusion that the crime was committed, it is error to give an instruction authorizing a verdict for an attempt.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1924, 1979; Dec. Dig. 814(20).]

8. CRIMINAL LAW 1137(3)-REQUESTED INSTRUCTION-ADMISSION.

In a prosecution for rape, defendant's requested instruction that if he had not been proved guilty beyond all reasonable doubt of the crime charged he might be found guilty of an as

tion with the pastor of the church to which, again." The court, on motion of the defendhe belonged, when he expressed his belief ant, struck this statement from the record that Elsie was a girl that could be worked and instructed the jury not to consider it. if some one would try, and a later conversation with the pastor after the event, in which he said she did not want to at first but finally submitted. The only disputed question was whether the act was committed forcibly and against her will.

It is argued that the effect of the testimony was not destroyed by striking it out, and that it was error to make known to the jury the feeling of the father against the defendant. What the father said would show that he disapproved of the defendant, but the jury would necessarily know that without his testimony, and therefore no harm came from it even if it had not been stricken out.

that a conviction, under a proper state of the evidence, might have been had for an assault or an assault with intent to commit the crime, it is objected that instructions authorizing such a verdict were wrong, because if the defendant was guilty at all he was guilty of the principal offense.

[1] Complaint was made that the court erred in admitting testimony of Elsie that she made complaint of the commission of the crime to the other girl when she met her on [5] The verdict of the jury was that the the corner in the village, and also testimony defendant was guilty of an assault with inof the other girl. No objection was made tent to commit the crime charged, and while to the testimony when given on the direct it is not denied that the charge of the princiexamination of Elsie, but on cross-examina-pal offense included all its ingredients, so tion she said that the other girl noticed she had been crying and asked her what was the matter, and her complaint was made in answer to questions. The other girl testified that Elsie had been crying; that her waist had been pulled out, and there were grass stains on her skirt, and her hair was down. The court overruled an objection to an inquiry as to the complaint. Evidence of that kind is admitted as corroborative of the testimony of the person alleging the crime | yond all reasonable doubt, of the crime charg against her because it is the natural and spontaneous expression of outraged feeling, but when a statement is made in response to questions put to her it is not competent. Cunningham v. People, 210 Ill. 410, 71 N. E. 389. There was other testimony of complaints made by Elsie the next day on a visit to Aledo to her sister, who worked in a department store, and also that evening to her mother on her return home, to which the objection that they were called out by questions did not apply.

[2, 3] The complaint to her companion in answer to questions related to the commission of the crime of rape, and if the defendant had been found guilty of the crime of which she made complaint the error of the court would have been prejudicial. The jury, however, did not accept the testimony of Elsie as to the commission of the crime, and as he was not found guilty of the offense of which she made complaint the error is not ground for reversal. The verdict of guilty of the lesser offense is regarded as an acquittal of the greater, and as the defendant was found not guilty of the crime of which Elsie complained, he has no reason to complain of the admission of evidence tending to prove that crime.

[4] It is urged that the court committed error in permitting the father of Elsie to testify to a conversation he had with the defendant during the trial. Elsie was commonly called Merle, and her father testified that the defendant followed him into the toilet room in the courthouse and said, "Mr. Stoner, Merle's innocence has got her into this trouble," and the father said, "I don't want you to speak to me; I don't want to talk to you, and don't you ever speak to me

[6-8] The court gave, at the instance of the defendant, an instruction that if the people had failed to prove that he was guilty, be

ed he might be found guilty of an assault, and the court also gave an instruction at the instance of the people that they might find the defendant guilty of a simple assault, or an assault with intent to commit the crime, or the crime itself. After the jury had retired to consider of their verdict they sent a written request to the court to be informed whether they could find the defendant guilty of a simple assault or assault with intent to commit the crime, and also asked for information as to the penalties if they so found. The jury being brought into the courtroom, the court again read the instructions already referred to, and gave an additional instruction stating the law as to an assault and an assault with an intent to commit the crime, and the punishment of each. Instructions should be applicable to the facts, and in a case where the evidence admits of only one conclusion, and that conclusion is that the crime was committed, it is error to give an instruction authorizing a verdict for an attempt. People v. Lewis, 252 Ill. 281, 96 N. E. 1005; People v. Schultz, 267.Ill. 147, 107 N. E. 833. If the evidence had been such that the only conclusion which the jury could reach would be that the defendant was either innocent of any offense or guilty of the crime charged, the instructions asked by both parties would have been wrong. The instruction asked by the defendant was a concession that there was evidence which would justify the verdict of a simple assault, and if he was guilty of an assault there is not a shadow of doubt that it was with intent to commit the crime. As a matter of fact, the testimony as to the first unsuccessful attempt, if believed by the jury, fully justified the verdict even if the jury believed what