ON PETITION FOR REHEARING. In his petition for rehearing the appellee Danner insists that the allowances in question were made upon the filing of a current report and that it was not, as stated in our opinion, "a final allowance of fees made in anticipation of immediate final settlement of the estate," for the reason that certain claims filed against the estate remained unpaid at the time of the entry of the judgment.
It does not appear to us that the paper in question was intended to serve the purpose of a current report. It mentions no unpaid claims. It is entitled "Executor's Petition To Fix 14. Allowances For Him and Attorney." It recites that the executor has paid all funeral expenses, all debts of the decedent, the legacies under the will, and costs of administration with a few minor exceptions which he is prepared to pay when definitely ascertained, and that nothing remains to be done except to ascertain the amount of compensation for himself and his attorney, pay same with balance of costs and expenses of administration and make final distribution. The appellant's condensed recital of the evidence indicates that claims filed had been allowed and paid and a reference to the transcript indicates the following testimony by Danner with reference to claims:
"Q. You remember what claims were filed against the estate? A. This lady Mrs. Lankford filed one claim for services in collecting rents down at the Virginia Apartment. *Page 251
"Q. What other claims were filed against the estate? A. I have filed one claim.
"Q. Well anybody else? A. Well various kinds of bills — I don't remember any other claims.
"Q. Well were they not all filed as claims against the estate? A. Yes.
"Q. Why didn't you pay them before they were filed? A. Because I thought they ought to have been sworn to, and had not been sworn to, before I paid them.
"Q. You asked them to file claims? A. Yes.
"Q. And then you allowed the claims and paid them? A. Yes."
Something was said on oral argument to the effect that the appellee Danner, after the filing of his petition for the allowance of fees and after the filing of appellant's objections thereto, had himself filed a large claim against the estate. Neither the nature of the claim, appellee's reasons for delaying its filing, nor the fact that it was pending unpaid was in any way brought to the attention of the trial court in connection with the representations in the petition or the hearing thereon. The appellee chose to go to trial on the petition as filed, and if we are to assume, in spite of appellee's testimony, perhaps upon the theory that the appellee could not allow his own claim, that his own rather tardily filed claim remained unpaid, it could yet not change our opinion as to the finality of the judgment rendered on the only issue tendered.
The appellee earnestly contends that we erred in holding the bond filed by the appellant to have been sufficient as to amount. However, we adhere to our opinion that it was sufficient. 15. Under the construction of the statute (§ 6-2001, Burns' *Page 252 1933), contended for by appellee, it would have been necessary for the appellant to have filed a bond in the sum of $12,000, whereas its liability under it could hardly exceed the sum of $50. We do not believe that the Legislature intended such a ludicrous result.
The appellee contends that our decision contravenes § 6-201, Burns' 1933. This court has held that unless disqualification under at least one of the provisions of this statute is 16-20. shown, it is mandatory upon the court to issue letters to the one appointed or nominated as executor by the terms of the will. In re Stahl's Estate (1942),113 Ind. App. 29, 44 N.E.2d 529. In the case last cited it is also said that a testator may not be deprived of the right to name a competent executor, nor may the court refuse to appoint a nominee because reasons are alleged which warrant the belief that the executorwill subsequently incur specified disabilities, or so conduct himself as to warrant revocation of the letters. It is recognized that the testator may himself impose conditions or specify disabilities precedent to the appointment of an executor as in this case, and we hold that the failure or refusal of the one conditionally appointed to satisfy a condition precedent to his appointment incapacitates him under the third clause of the statute. When, however, letters are issued to an executor under the circumstances related in this case in our original opinion, he will be held to have impliedly agreed to a condition such as here imposed and will be bound by it.
NOTE. — Reported in 51 N.E.2d 487. *Page 253