65 Iowa 570 | Iowa | 1885
It is claimed, however, by defendants, that the time within which proceedings may be instituted for the correction of mistakes in the settlement is limited, by the latter clause of section 2375, to three months from the time of the settlement in which the mistake occurred; and that, as plaintiffs did not institute this proceeding for nearly two years after the final settlement in question, their right of action is barred. The provision relied on is as follows: “ Accounts settled in th^ absence of any person adversely interested, and without notice to him, may be opened within three months, on his application.” We are of opinion, however, that this provision is not applicable to a case where it is claimed the administrator, by fraud or mistake, has omitted to account for a portion of the assets of the estate.
The allegation here i's that the amount in question was not contained in the accounts filed by the administrator. There has, therefore, never been a settlement as to that item. By mistake or fraud it was omitted from the accounts, and hence was not included in the settlement. Besides this, the provision of section 2474 is general. The court is empowered to correct the mistake whenever such grounds for relief are shown as will warrant the interference of a court of equity. And we think it very clear that this provision is in no manner limited by the provision of section 2475. The administrator made a partial settlement in 1874. The evidence
At about the time of the partial settlement in 1874, the said Robert Spates was appointed guardian of plaintiffs, and at the time of his final settlement and discharge as administrator he was still acting as such guardian, and the vouchers which he filed with the clerk, after the order was made discharging him from further duties and responsibilities as administrator, were receipts signed by himself as guardian for the amounts of the distributive shares of his wards in the estate. He was, therefore, specially charged with the duty of protecting plaintiffs’ interest in the final settlement of his accounts as administrator, and in the distribution of the assets of the estate.
The case, then, presents special grounds entitling plaintiffs to relief in equity. There is nob only a mistake in the settlement, but, to put that construction upon the facts of the case most creditable to defendant, such mistake was occasioned by his gross negligence, and was in a matter in which he owed them a special duty.
The judgment of the circuit court awards plaintiffs separate judgments for $98.45 each, with six per cent interest from the date of the final settlement. This amount is excessive. Alexander Arnold left a'widow and seven children surviving
Affirmed.