57 Iowa 523 | Iowa | 1881
I. No will was probated and the allegations of the answer in regard to it were stricken out. The defendant relies upon an agreement whereby, as he alleges, he was made trustee of the property.
The plaintiff, however, contends that the agreement relied apon was of no force, so far as it was designed to be operative after the death of the decedent, and gave the defendant no right to, or interest in, the property against her who has been duly appointed administratrix. This position of the plaintiff,
It was competent of course for the decedent to appoint his father his agent to transact his business. Whatever money of the decedent, therefore, the defendant properly expended for him during his life, the defendant cannot properly be called upon to pay to the plaintiff. The agreement was good enough so far as it was executed by the defendant during his agency, but'there is no rule of law better settled than that an agency terminates upon the death of the principal. Upon the termination of the defendant’s agency he became a mere custodian of the property remaining in his hands, and had no right a3 against a duly appointed administrator.
The defendant seems to have supposed that the case must turn upon the question as to whether a trust in personal property can be created by parol. He has cited several authorities to show that it can. The doctrine contended for is unquestionably correct. But it does not go far enough to aid the defendant in this case. Whatever trust was created the decedent in his lifetime could have enforced. So if he had given the property to his children in such way that the title passed in his life time, and the defendant had been constituted trustee of the property for his children, such trusteeship would not have been terminated by the death of the decedent, and in an action by the children to enforce the trust the defendaijt could not
In our opinion there are two grounds upon either of which the ruling can be sustained. It was not the defendant’s right to use the money of the estate in paying its debts. Portman v. Klemish, 54 Iowa, 198. It is true that in that case the defendant was not charged with money so used; but the court expressly disapproved the acts of the defendant, and sustained the ruling of the court below, only, by reason of the peculiar circumstances of the case. The decedent’s widow had been made sole devisee and appointed executrix. For some reason she failed to quality. The defendant undertook to assist her in the management and disposition of the estate. The payments were made with that view. The duly appointed administrator received money enough to pay all the proven debts. If a recovery had been allowed from the defendant it would have been solely for the benefit of the devisee, who did not appear to be in a condition to complain. While the result was favorable to the defendant in that case, the general doctrine of the opinion is against the defendant in this.
Besides in no case could an intermedler be allowed to escape liability for using money of the estate in the payment of its
The court below seems to have regarded the defendant’s claim in this respect as a counter-claim. As such it was clearly not allowable. But the claim was evidently made by way of defense merely, and as showing that the defendant ought not to be held to pay the plaintiff for property which he had disposed of under the agreement, and in accordance with its terms. The answer, as we understand it, proceeds upon the theory that the defendant’s claim for nursing, etc., has really been discharged, and he sets it up now merely as a mode of accounting for the property which came into his hands, and for which he would otherwise be chargeable.
If the amount due the defendant had been liquidated between him and the decedent, and the property which had come into his hands had been wholly money, there would be much ground for holding that the defendant’s position is well taken. We might hold that the understanding was that the money was applied. But we cannot hold that it was competent for the defendant to liquidate his own claim and pay himself, out of such property as he had. Whatever then became due him for nursing, etc., was, we think, a subsisting claim against the decedent’s estate, and should have been proven by the defendant, and established against the estate in the mode which the statute provides.
The defendant claims that the evidence shows conclusively that a part of the property with which he has been charged is not in his possession, but in the possession of one Anistatia Winkleman. But the evidence shows that the property came into her possession by the defendant’s direction, and the de fendant’s answer shows that he claims the right to the property as against the plaintiff.
In our opinion the judgment must be
Affirmed.