On Petition por a Rehearing.
Coffey, J.An earnest petition for a rehearing has been filed in this cause, in which it is insisted that the opinion heretofore handed down does not dispose of all the questions presented by the record. It is insisted that the court should *513have set out the complaint and answer, and should have discussed and decided the questions arising thereon.
The complaint consists of four paragraphs,- is quite voluminous, and as no question as to its sufficiency was presented to the circuit court, nor its sufficiency questioned here, no good purpose would be subserved by setting it out. Indeed, to do so would uselessly encumber the opinion in the cause. Counsel are in error in their assumption that it is the constitutional duty of this court to make a statement of the questions presented by the several paragraphs of the complaint and render a decision thereon. The duties of this court in matters of this kind has long been settled by adjudicated cases. Buskirk Prac., p. 11; Willets v. Ridgway, 9 Ind. 367; Judah v. Trustees, etc., 23 Ind. 272.
In the latter case cited numerous reasons were assigned for a new trial, but the court refused to set them out in detail, and said : “ The question in the record is, Did the court-below err in refusing a new trial ? TYe have decided that question and have, we think, therefore, done all that we are required to do. The reasons relied upon for a new trial, we regard not as questions in the record, but arguments upon the question, to be considered so far as may be necessary to decide the question
It is earnestly insisted by the appellants that the question as to whether the heirs to an estate, being of full age, may or may not settle such estate without formal administration without interference from strangers, is fairly presented by the record in the cause, and should have been decided.
As to whether this question is presented by the record depends upon whether Stewart, the appellee, is to be regarded as a stranger. Assuming, without deciding, that the record presents this question, we proceed to its consideration. It is claimed that the question arises on demurrer to the answer. So much of the several paragraphs of the complaint as is necessary to an understanding of the question now to be *514considered, alleges that Abner II. Bowen died, intestate, on the 10th day of February, 1890, leaving the appellants, who are all of full age and competent to contract, as his only heirs at law; that he left no debts except a few small claims due to merchants, and a small amount due to attorneys as fees; that after his death the appellants agreed to settle the estate and pay the debts without administration; that while they were thus settling said estate the appellee, who is neither a creditor nor a relative, but a stranger to the estate, on the 23d day of April, 1890, took letters of administration on said estate without the knowledge of the appellants; that there was no necessity for administration upon said estate ; that the appointment of the appellee was not made at the request of any one legally interested in said estate.
• Omitting to demur-to the several paragraphs of the complaint the appellee answered, among other things, that he was the county treasurer of Carroll county, the county in which Abner H. Bowen resided at the time of his death, and in which he left an estate to be administered; that at the time of his death said Abner H. was indebted in a large sum, part of which the appellants had refused to pay; that he held mortgages on fifty thousand acres of land in Carroll and adjoining counties, which mortgages were unpaid; that he was indebted to the city of Delphi in the sum of $20,-000 for taxes due on personal property which he had failed to list, and that he was indebted to the county of Carroll in the sum of $40,000 for taxes due on personal property which had never been listed for taxation.
Assuming, without deciding, that the petition upon which the appellee was appointed was defective in not stating that the appellee had an interest in the administration of the estate of Bowen, or the ground upon which he sought to take letters, still his appointment was not void. Whore a petition, or notice, is necessary to call into exercise the jurisdiction of a court, or other tribunal, if some petition is filed, or notice given, however defective, if the court adjudges it *515sufficient, and acts .upon it, the subsequent action of the court, based upon such petition, or notice, is not void. Pickering v. State, etc., 106 Ind. 228; McCormick v. Webster, 89 Ind. 105; Stout v. Woods, 79 Ind. 108; State v. Wenzel, 77 Ind. 428; Barber, etc., Co. v. Edgerton, 125 Ind. 455, and authorities cited.
It can not well be doubted that the heirs to an estate, who are of full age anji capable of contracting, may settle such estate without regular administration, free from the interference of third parties, provided the estate owes no debts, and there is nothing to be done by an administrator except to divide such estate among the several heirs. So, they may settle such estate without administration where there are debts, provided the creditors do not object to such settlement, and a court of equity will relieve them from the interference of third persons who procure letters of administration, without their consent, where there is no necessity for such letters. Taylor v. Phillips, 30 Vt. 238 ; Hays v. Vickery, 41 Ind. 583; Owings v. Bates, 9 Gill, 463; Babbitt v. Bowen, 32 Vt. 437; Henderson v. Clarke, 27 Miss. 436; Needham v. Gillett, 39 Mich. 573; Woerner Am. Law of Administration, section 201; Fretwell v. McLemore, 52 Ala. 124; Coldron v. Rhode, 7 Ind. 151; Hibbard v. Kent, 15 N. H. 516 ; Hargroves v. Thompson, 31 Miss. 211; Walworth v. Abel, 52 Pa. St. 370; Weaver v. Roth, 105 Pa. St. 408.
Many more authorities to the same effect might be cited, but the question has been so often adjudicated, in effect, in this State that such citation would seem unnecessary.
It has been repeatedly held by this court that where there is no administrator, and the estate is not indebted, the heirs may sue for and recover the assets belonging to the estate. Moore v. Board, etc., 59 Ind. 516 ; Stebbins v. Goldthwait, 31 Ind. 159; Mitchell v. Dickson, 53 Ind. 110; Martin v. Reed, 30 Ind. 218; Bearss v. Montgomery, 46 Ind. 544; Williams v. Riley, 88 Ind. 290; Begien v. Freeman, 75 Ind. 398; Fer*516guson v. Barnes, 58 Ind. 169; Schneider v. Piessner, 54 Ind. 524.
These cases rest principally upon the ground that where there are no debts the assets of the estate belong to the heirs, and there is no necessity, for an administrator. 1^ letters of administration should be granted to a stranger, who had no interest in the estate, in a case where there was no necessity for an administrator, no doubt the court would, upon a proper application, relieve the heirs from the effect of his unwarranted interference.
But it is not true, as contended by the appellants, nor do the authorities cited so hold, that the heirs may, by agreement among themselves to settle an estate without administration, where there are creditors, deprive such creditors of the right to take letters, or procure others to take them. So long as there are debts against the estate the heirs can not maintain an action to recover the assets. So, too, so long as there is a single creditor he has a right to demand that the estate shall be settled in the mode prescribed by the statute, and that the person handling the assets shall give bond securing the proper application of the funds that may come into his hands. Letters having once been properly granted, the person to whom such grant is made acquires the right to fully administer the estate.
In this case it is admitted by the demurrer that the estate of Abner H. Bowen is largely indebted, not only to private individuals, but to Carroll county.
It is contended, however, that, as the appellee is not a creditor, nor an heir, he is a stranger to the estate, and therefore can not take out letters. Of course Carroll county, as such, can not administer on the estate of Bowen, and if it be true that such estate owes the county forty thousand dollars, which can not be collected without administration, the county is, if the position assumed by the appellants is sustained, without remedy. 'But we are not inclined to sustain the position of the appellants in this case. Carroll county *517can act, we think, by its officers and agents. The appellee, as the treasurer of the county, is specially charged with the duty of collecting the taxes due from those liable to assessment within its jurisdiction. If the estate of Bowen owed Carroll county the taxes named in the answer, which could not be collected without administration, we think it was the duty of the appellee, who was charged with the duty of collecting such taxes, to take letters of administration himself, or to procure some one else to do so, to the end that such taxes might be collected.
Filed June 17, 1891.The court having granted letters to the appellee, the legal presumption existed that the aotion of the court was right, and the burden was upon the appellants to prove that there was no necessity for administration upon Bowen’s estate.
The question as to whether the estate owed the taxes mentioned in the answer was an important question in the case. As to whether he listed all his property for taxation was, at the time of the trial, best known to the appellants, and they being in possession of his property could perhaps have shown that fact. The evidence in the cause was not, in our opinion, of a character to convince the court that there were not taxes due from Bowen’s estate on property not listed for taxation.
We have again gone over the record in this cause, and feel warranted in saying that no error has intervened which would authorize a reversal of the judgment of the circuit court.
The petition for a rehearing is overruled.