130 Iowa 132 | Iowa | 1906
John Albrecht of Polk county, Iowa, died intestate in the year 1897. His surviving heirs at law were his children, Bichard Albrecht, Ernest Albrecht, Louis Albrecht, and Minnie Frederickson. In the year 1893, the
“ After my decease the above notes belong to Eichard and Ernest Albrecht to whom they will then belong. [ Signed] John Albrecht.”
It is claimed on part of Eichard and Ernest that this list witlTthe notes therein described were at the time delivered into the hands of Havens to be-held for their benefit. At the date of this transaction John Albrecht was about seventy-five years of age, in ill health, and evidently believed that his death could not be long postponed; and, although he did not die until the year 1891, there is no evidence tending to show that he ever expressed any purpose or desire to change or withdraw the arrangement he had 'made, or attempted to make, for the disposition of his property. Soon after his death, his son Louis began an action in equity against his sister and brothers to set aside the. trust deed ¿hove mentioned, on the theory that no sufficient delivery of the instrument had ever been made, and that it was not executed in such form as to make it effective as a will. Mrs. Frederickson also sought by cross-bill to reestablish the original deed conveying the land to her absolutely. The district court dismissed both bill and cross-bill and confirmed
I. If we understand the contention of appellants in their argument in chief, it is to the effect that, even if the heirs of John Albrecht did enter into an agreement to settle and distribute his estate, and although there were no outstanding claims of creditors to be satisfied, such settlement and distribution does not avoid the necessity or propriety of administration; and that an administrator thereafter appointed may demand the surrender to him of the items of personal estate so distributed, and, upon refusal to comply with such demand, may maintain an action for their conversion. We do not so understand the law. It is true that expressions may be found in some of the cases relied upon by appellant which tend to sustain his position in this respect, but- we know of no precedent going to the extent of the proposition here advanced. In neither Haynes v. Harris, 33 Iowa, 516, Baird v. Brooks, 65 Iowa, 40, nor Foss v. Cobler, 105 Iowa, 128, is a case presented where all the parties in interest have made settlement and distribution among themselves after the death of the ancestor; nor does the decision in either of those cases necessarily involve the recognition of a principle which would require us to hold that such a settlement cannot be upheld. It may be conceded that the court is not without authority to appoint an administrator even if there be no creditors of the estate; but, if, on being appointed and bringing action against the heirs to recover the property, it is shown that all the heirs have-already united in making a settlement and distribution of the personal assets of the estate, that agreement will not be annulled or ignored by the court, and the court will not sacrifice substance to form by ordering the delivery of said assets to the administrator merely to be redistributed to the
And in Murphy v. Murphy, supra, we held to the doctrine that one heir or distributee of an estate could maintain an action against another to enforce his rights in the property, although no administrator had been appointed, and the limit of time in which such appointment could be made had not yet expired; it affirmatively appearing that all the heirs were before the court, and that the debts of the estate were paid. Indeed, the reply argument of appellant appears to concede the law to be as we have stated, counsel frankly saying that, if there was in fact a complete settlement between the heirs, “ this litigation should proceed no further.” That question is principally one of fact, and the jury have found it against the appellant. Unless, therefore, there was some manifest error in the course of the trial, or it can be said by us that there was no evidence to support the verdict in this respect, the judgment appealed from must be affirmed without reference to the question whether there was a completed gift of the property to the defendants in their father’s lifetime.
Our examination of the record satisfies us that there was ample evidence to go to the jury upon the question whether the alleged settlement was agreed to by Louis Albrecht. It is true that Louis was not present at the time of the conversation between his brothers and sister immediately after their father’s funeral. His location at that time appears to have been unknown; but he soon returned,
He seeks, however, or rather the administrator in his behalf seeks, to escape this very apparent point by insisting that it does appear that his sister, Mrs. Erederickson, did not join with the rest in the alleged agreement, and that the attempted settlement was therefore ineffectual. Here also the party most interested in this particular question, Mrs. Erederickson, is not produced as a witness, and we are left to the version given of the transaction by the others who were present at that time. It is not correct to say, as counsel do, that she was not present. It is shown that on the day after the funeral Richard and Ernest came to the residence of the Eredericksons on the land, which had been left in trust, where they met their sister and her husband and Mr. Havens. The meeting appears to have been arranged for the purpose of settling their family affairs, and after being assembled the box containing the papers and notes which their father had owned was brought out and the contents displayed. Havens produced the trust deed and other papers which had been in his keeping. Mrs. Erederickson continued about her household duties passing
The judgment appealed from is affirmed,.