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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 col- ham v. Russell, 152 Ind. 186, 52 N. E. 806; lateral to the proceeding to sell, and which, Cullop v. Vincennes, 34 Ind. App. 667, 72 N. E. to say the least, would have been tendered 166. This exception permitted the adjudicaand presented to the court more properly in tion of the question of taxes covered by conthe manner recognized and prescribed by the clusion of law No. 3, supra, but not necessaristatute, and if said issues had been so ten. ly the inheritance taxes covered by concludered, S. would not have been a necessary or sion No. 2, supra. proper party thereto.

[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 tbere 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 [14] We also recognize that, when he files there is in fact a valid adjudication of such his petition to sell real estate, if the heirs issues, appellants' contention that the motion or others who, under the will, have an interto dismiss should be overruled as to that est in such real estate or the proceeds depart of the judgment affecting such issues rived from the sale thereof controvert or is correct.

contest the validity of any claim, the burden [11] As affecting these issues, it should be is on such executor as the representative of noted: (1) With reference to said inheritance the general claimants to prove the validity of tax, that steps had been taken in a proceed- such contested claim. Riser v. Snoddy, 7 ing brought for such purpose in the Howard Ind. 442, 446, 65 Am. Dec. 740; Scherer v. circuit court to ascertain the amount of such Ingerman, 110 Ind. 428, 438, 11 N. E. 8, 12 tax with a view to its collection as provided N. E. 304. It seems, however, that even in by the inheritance tax law (Acts 1913, p. such a case the executor may relieve his es79, being section 10143a et seq., Burns 1914), tate of such burden by notifying the claimbut it affirmatively appears from the finding ant of the contest of such claim, and giving of facts that such proceeding is still pending him an opportunity to come in and protect in the Howard circuit court, and that such his claim. Scherer v. Ingerman, supra. 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 execu- claimants and the heirs in the same action, tors and individuals they are, under the law, because, as before stated, in the allowance of the same as two different people. Powell v. claims he represents the heirs and beneficiJackson (1916) 60 Ind. App. 597, 605, 111 N. aries of the estate, while in a petition to E. 208, 211; Moore v. Ferguson (1904) 163 sell he becomes the representative of the Ind. 395, 400, 72 N. E. 126.

general claimants. [12] Generally speaking, the law contem The record in this case before indicated plates and requires that all claims against an clearly discloses that, as to the questions estate shall be filed for allowance in the of- and issues involved in this litigation, G. & fice of the clerk of the court in which such G. sustained three separate independent, and

any in

In some respects inconsistent and antago- y 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 cecding 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 assign

ritance tax found to be due the state ment 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 pre tate 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 [18] Where the executor is himself the tax, and relieve themselves from the pay- claimant against an estate, either in his own ment thereof, and by succeeding in getting an right or in a fiduciary capacity as the repreallowance of the claim for costs and expenses sentative of some other person or estate, the and attorney's fees connected with said con law recognizes the inability of such executor solidated suits involving the custody of Wil- to impartially act in both capacities and proma they would transfer to said estate a lia- vides for the appointment of a special repbility which was primarily their own.

resentative of the estate. Section 2839, As to the inheritance tax, the trial court, Burns 1914. While this section in terms by its second conclusion of law supra, held applies only to claims accrued before the 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 be construed in connection with it, and the to pay such tax, and by its sixth conclusion latter section applies to claims originating held that “the general estate is not liable for after as well as before decedent's death any of the costs, expenses, or attorney's fees (Scott v. Dailey, 89 Ind. 477, 470, Tracewell incident to the litigation concerning the cus

v. Peacock, 55 Ind. 572, 574; Richy v. Cleet, tody and guardianship" of Wilma, but that 46 Ind. App. 326, 330, 92 N. E. 175), and the entire interest of Wilma in said estate specifically provides for the bling of claims by should be charged therewith.

the administrator or executor, and the courts [16, 17] G. & G., Ex., in their several as will in such cases supply a procedure akin signments of error in this court challenge to that provided by section 2839 where a the sixth conclusion of law alone, and in claim is filed the defense of which is not their briefs they try to support the second specifically provided for by the statute (Hubconclusion, which charges the estate which bard v. Hubbard, 16 Ind. 25; Wright v. they are supposed to represent with the in. Wright, 72 Ind. 149, 150). heritance tax, and attack conclusion 6, which

So, if in the instant case a claim had been relieves said estate from the payment of the Aled by G. & G. against said estate on account costs, attorney's fees, etc. in said consolidat- of services rendered and expenses incurred ed suits, G. & G. as individuals might very by them in defending said consolidated suits, appropriately assume this attitude toward it would have been the duty of the trial court said conclusions of law, but as executors they to appoint a representative to defend said are at least in a sense in no position to complain of a conclusion of law which is favor- estate against such claim. Hubbard v. Hubable to the estate, or to uphold a conclusion bard, 16 Ind. 25; Wright v. Wright, 72 Ind. unfavorable to such estate. They are in no

149, 150. 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 ex

Wilma was also inconsistent with and antagtate of Wilma with said costs, attorney's fees, etc., for either of two reasons: (1) Be.

ecutrix. 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 ler v. Sudler, 121 Md. 46, 56, 88 Atl. 26, 30, attempting to charge the estate of said Wil. Ann. Cas. 1913E, 1191, 49 L. R. A. (N. S.) S60; ma with said costs and attorney's fees is Sawyer v. Knowles, 33 Me. 208, 210; Sensenot carried into the judgment appealed from, man's Appeal, 21 Pa. (9 Harris) 331, 334; and hence is harmless. White v. Chicago, Ex parte Crutchfield, 11 Tenn. (3 Yerg.) 336, etc., Co., 122 Ind. 317, 330, 331, 23 N. E. 782, reprint, citing Code Tenn. $2489, enacted 7 L. R. A. 257; Sphung v. Moore, 120 Ind. since that decision. In other jurisdictions 352, 354, 355, 22 N. E. 319; Slauter v. Favor- such an appointment is held to be against ite, Guardian, 107 Ind. 291, 300, 4 N. E. 880, public policy. Sudler v. Sudler, supra; Rick57 Am. Rep. 106. It may also be suggested ard's Case, 15 Abb. Pr. N. S. (N. Y.) 6-8; Es in this connection that, for the reason last 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 We therefore conclude and hold that, unthe manner and method here attempted, and der the facts disclosed by the record and for whether the court should lend its sanction the reasons herein indicated, the judgment and approval to such manner and method of herein, in so far as it attempts to adjudicate procedure.

the unfiled disputed claims involving said inIt is our judgment that, whatever the rule heritance tax and the attorney's fees, costs, may be in a proceeding of this character with etc., of said consolidated suits, is without reference to permitting the litigation and ad-force or effect. judication of an unfiled disputed claim (and

It follows from what we have said that, in this we need not and do not decide), such so far as the judgment herein appealed from practice should not be permitted where the is within the issues and valid, S. was a necesclaim thus sought to be litigated is one in sary appellee, and because of the failure of which the executor of such estate is personal- appellants to make her such their appeal ly interested, and that any attempted litiga- should be dismissed. tion of such a claim by such a method, where

Before closing this opinion we deem it the claimant himself is not made a party, is proper, and in fact our duty, to say that of no effect and void for want of jurisdiction nothing we have said herein is intended as

any reflection on the motives or good faith of over one of the parties interested. [19] Going back to the question of said in the facts disclosed by the record, and espe

G. & G. or their counsel. On the contrary, heritance tax, the court by its conclusion of law No. 2 concludes merely that the real es. vinces us, as it apparently did the trial court,

cially by the finding of the trial court, contate embraced in the residuary clause of said that G. & G. and their counsel have done what will “can be sold for the purpose of paying they did in perfectly good faith, believing such inheritance tax if any be found due” on that in so doing they were carrying out the said respective tracts, etc. This conclusion is desire of their testatrix as expressed in her not carried into the judgment, unless it can will. Nevertheless we think the court cannot be said to be embraced in the following pro- give its sanction to such a precedent. visions thereof:

The appeal is therefore dismissed without "It is therefore now adjudged by the court prejudice as to the question of said inheritthat the

real estate at public sale to pay the indebtedness found due ance tax and the costs, expenses, attorney's in said special finding of facts. The court fur- fees, etc., of said consolidated suits, involvther orders the payment of all legitimate cr- ing the care, custody, and guardianship of penses of said estate the amount of which has Wilma. not been found herein."

We seriously doubt whether this record FELT, C. J., and IBACH, P. J., and CALDshows any adjudication of the question of WELL, BATMAN, and DAUSMAN, JJ., consaid inheritance tax. Assuming, however, cur.

(276 Ill. 392)

sault, was a concession that there was evidence PEOPLE V. MOORE. (No. 10875.) justifying a verdict of a simple assault.

[Ed. Note.-For other cases,

see Criminal (Supreme Court of Illinois. Dec. 21, 1916. Law, Cent. Dig. 8 3009; Dec. Dig. Owl137(3).) Rehearing Denied Feb. 7, 1917.)

9. CRIMINAL LAW m720(6) — TRIAL - ARGU1. RAPE 48(1)–EVIDENCE-COMPLAINT.

MENT OF PROSECUTOR. In a prosecution for rape a complaint made

The state's attorney bas a right to assume by the prosecutrix is admissible as corroborative the truth of the evidence offered by the people. of her testimony, because it is the natural and [Ed. Note.-For other cases,

see Criminal spontaneous expression of feelings; but such Law, Cent. Dig. 88 1670, 1671; Dec. Dig. complaint made in answer to questions is inad- 72006).] missible.

Error to Circuit Court, Mercer County; [Ed. Note.-For other cases, see Rape, Cent. Wm. T. Church, Judge. Dig. § 67; Dec. Dig. Om 48(1).]

Sidney S. Moore was convicted of assault 2. CRIMINAL LAW 1169(6) APPEAL HARMLESS ERROR-ADMISSION OF EVIDENCE. with intent to commit rape and he brings er

In a prosecution for rape, error in the admis- | ror. Affirmed. sion of a complaint made by prosecutrix in an

H. E. Burgess, of Aledo, Searle & Marshall, swor to questions was harmless, where the jury did not convict of rape, but of an assault with of Rock Island, and Albert E. Bergland, of intent to commit rape.

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. Om1169(6).] of Aledo, and Jacob R. Creighton, of Fair3. CRIMINAL LAW Ow19312 - VERDICT AC-field (W. J. Graham, of Aledo, of counsel), QUITTAL.

for the People. The verdict of guilty of an assault with intent to commit rape was to be regarded as an CARTWRIGHT, J. The plaintiff in error, acquittal of the greater offense of rape.

Sidney S. Moore, was convicted upon a trial [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 366, 387, 389, 394; Dec. by jury in the circuit court of Mercer county Dig. Om19342.]

of an assault with intent to commit rape up 1. CRIMINAL LAW (W1169(1)-APPEAL-HARM- on the person of Elsie M. Stoner, and was LESS ERROR-ADMISSION OF 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, sce Criminal M. Stoner was a member of the senior class Law, Cent. Dig. $ 3137; Dec. Dig. Omw1169(1).] of the school. On Friday, September 24, 5. INDICTMENT AND INFORMATION Om 191(8)

—1915, the school was dismissed at about half OFFENSES INCLUDED RAPE LESSER OF- past 3 o'clock, and the principal, assistant FENSES.

A charge of rape included all its ingredients, principal, and scholars went to a picnic in so that a conviction under a proper state of the a grove near the village, which the witnesses evidence might have been had for an assault, or called a "wienie roast.” After the picnic, at for an assault with intent to commit rape. about 7 or half past 7 o'clock, the defendant

(Ed. Note.-For other cases, see Indictment and Elsie left the grove with a boy and girl and Information, Cent. Dig. Š 616; Dec. Dig. who walked together and the defendant walkEn 191(8).]

ed with Elsie. When part way to the vil6. RAPE 59(20, 21) INSTRUCTIONS OFFENSES-EVIDENCE.

lage the defendant remembered he bad forIn a prosecution for rape where there was gotten a ball glove which he had borrowed an admission that the evidence would justify a of a boy and had loaned to Elsie for a game verdict of simple assault, and where there was of catch. She had thrown it behind a tree, evidence justifying a verdict of an assault with intent to commit rape, there was no error in an and he asked if she would go back with him instruction permitting a conviction for those of- to get it. She said she would if the other fenses and stating the law thereon and the pun- girl and boy would go with them, but the ishment of each.

others made some objection and the defend[Ed. Note. For other cases, see Rape, Cent. ant and Elsie went back to the grove and Dig. $ 99; Dec. Dig. Om 59(20, 21).]

found the glove. It was getting dark when 7. CRIMINAL LAW Ow814(20) — INSTBUCTIONS they started back to the village, and they -EVIDENCE.

Instructions should be applicable to the reached Ashenhurst's corner, in the business facts, and in a case where the evidence admits of section of the city, about 8 or half past 8 only the conclusion that the crime was commit-o'clock, where they met the girl who had ted, it is error to give an instruction author- been with them and some other girls. Conizing a verdict for an attempt.

(Ed. Note.-For other cases, see Criminal cerning the criminal charge, Elsie testified Law, Cent. Dig. 88 1924, 1979; Dec. Dig. to an assault by the defendant on the way 814(20).)

to the village which was successfully resist8. CRIMINAL LAW Ow1137(3)–REQUESTED IN-ed, and after a short interval a further asSTRUCTION-ADMISSION.

sault, when the crime was consummated In a prosecution for rape, defendant's re- forcibly and against her will, and the defendquested instruction that if he had not been proved guilty beyond all reasonable doubt of the ant did not testify. About six months prior crime charged he might be found guilty of an as to the picnic the defendant had a conversa.

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 conversa - It is argued that the effect of the testimony tion with the pastor after the event, in was not destroyed by striking it out, and which he said she did not want to at first but that it was error to make known to the jury finally submitted. The only disputed ques- the feeling of the father against the defendtion was whether the act was committed ant. What the father said would show that forcibly and against her will.

he disapproved of the defendant, but the jury [1] Complaint was made that the court er. would necessarily know that without his tesred in admitting testimony of Elsie that she timony, and therefore no harm came from it made complaint of the commission of the even if it had not been stricken out. 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 that a conviction, under a pro er state of the had been crying and asked her what was the evidence, might have been had for an assault matter, and her complaint was made in an or an assault with intent to commit the swer to questions. The other girl testified crime, it is objected that instructions authat Elsie had been crying; that her waist thorizing such a verdict were wrong, because had been pulled out, and there were grass if the defendant was guilty at all he was stains on her skirt, and her hair was down. guilty of the principal offense. The court overruled an objection to an in (6-8] The court gave, at the instance of the quiry as to the complaint. Evidence of that defendant, an instruction that if the people kind is admitted as corroborative of the tes- had failed to prove that he was guilty, betimony of the person alleging the crime yond all reasonable doubt, of the crime charg.

nst her because it is the natural and ed he might be found guilty of an assault, spontaneous expression of outraged feeling, and the court also gave an instruction at the but when a statement is made in response to instance of the people that they might find questions put to her it is not competent. the defendant guilty of a simple assault, or Cunningham v. People, 210 Ill. 410, 71 N. E. an assault with intent to commit the crime, 389. There was other testimony of com- or the crime itself. After the jury had replaints made by Elsie the next day on a visit tired to consider of their verdict they sent a to Aledo to her sister, who worked in a written request to the court to be informed department store, and also that evening to whether they could find the defendant guilty her mother on her return home, to which the of a simple assault or assault with intent to objection that they were called out by ques- commit the crime, and also asked for infortions did not apply.

mation as to the penalties if they so found. [2, 3] The complaint to her companion in The jury being brought into the courtroom, answer to questions related to the com- the court again read the instructions already mission of the crime of rape, and if the referred to, and gave an additional instrucdefendant had been found guilty of the crimetion stating the law as to an assault and an of which she made complaint the error of assault with an intent to commit the crime, the court would have been prejudicial. The and the punishment of each. Instructions jury, however, did not accept the testimony should be applicable to the facts, and in a of Elsie as to the commission of the crime, case where the evidence admits of only one and as he was not found guilty of the offense conclusion, and that conclusion is that the of which she made complaint the error is not crime was committed, it is error to give an ground fo reversal. The verdict of guilty instruction authorizing a verdict for an atof the lesser offense is regarded as an ac- tempt. People v. Lewis, 252 Ill. 281, 96 N. E. quittal of the greater, and as the defendant 1005; People v. Schultz, 267.Ill. 147, 107 was found not guilty of the crime of which N. E. 833. If the evidence had been such Elsie complained, he has no reason to com- that the only conclusion which the jury could plain of the admission of evidence tending reach would be that the defendant was either to prove that crime.

innocent of any offense or guilty of the crime [4] It is urged that the court committed er- charged, the instructions asked by both parror in permitting the father of Elsie to tes- ties would have been wrong. The instruction tify to a .conversation he had with the de- asked by the defendant was a concession that fendant during the trial. Elsie was com- there was evidence which would justify the monly called Merle, and her her testified verdict of a simple assault, and if he was that the defendant followed him into the guilty of an assault there is not a shadtoilet room in the courthouse and said, “Mr. ow of doubt that it was with intent to Stoner, Merle's innocence has got her into commit the crime. As a matter of fact, the this trouble," and the father said, “I don't testimony as to the first unsuccessful atwant you to speak to me; I don't want to tempt, if believed by the jury, fully justified talk to you, and don't you ever speak to me the verdict even if the jury believed what

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