152 Iowa 323 | Iowa | 1911
Lead Opinion
Upon the death of Edward G. Irwin, without issue, the widow surviving was appointed administratrix, and to her final report as such the parents of decedent interposed objections. The decedent was a farmer, and among the objections to the report' was one that the administratrix had omitted to inventory several head of cattle and horses.
Administratrix asked for an allowance of $150 for attorney’s fees. No evidence of the services rendered by attorneys or the value thereof was adduced. The court may have based the finding on knowledge of what had been done. The record disclosed no error in reducing the amount to $75.
The party of the first part has this day sold to the party of the second part The described land’ for the sum of $1,800. The party of the first part agrees to send abstract to said land to the party of the second part at his-address at Waterloo, Iowa, for inspection by attorney, and in case said abstract is found to convey a merchantable title he agrees to make a warranty deed to said party of the second part by and from Bertie M. Kathburn, in whom the title at the present stands. The party of the second part agrees to leave a check drawn upon the Commercial National Bank at Waterloo, Iowa, for the sum. of $50, with the First National Bank of Scott City, Kan., to bind this deal, and in case said abstract is found to convey a good title, the party of the second part agrees to promptly forward the sum of $1,750 by bank draft to the First National
The contract was signed by decedent and Boyer and witnessed by “B. M. Bathburn.” Decedent had deposited the check of $50 with the bank, and upon his return to this state purchased a draft for the required amount, payable to the bank as stipulated, but was taken sick, and, though directing his wife to forward it, he died before this was done. Upon being • appointed administratrix, she, without notice to the heirs, applied to the court for an order directing her to turn the draft over to the bank upon delivery to her of a warranty deed conveying the land, and the court so ordered, requiring title to be taken in the name of decedent. She did so, and the main controversy on this appeal is whether the court rightly ruled that this $1,150 should be charged to her in the final report.
Under the statutes of Kansas, “If the intestate leave no issue, the whole of his (the husband’s) estate shall go to his wife.” Section 2953, Gen. St. Kan. 1909; Brown v. Belmarde, 3 Kan. 41. Such estate, then, as he had in Kansas descended to the widow. If he left any estate there, it must have been an interest in the land covered by the contract. According to that instrument, he had paid nothing thereon to the owner nor to Boyer, if he was agent of the owner. Nor had he entered into a contract with the owner for the purchase of the land. His contract was with Boyer, and whether he was authorized by Bertie M. Bath-burn to agree that she would make a warranty deed to decedent does not appear in the instrument itself, nor from evidence aliunde. The consideration was to be paid the bank, not the owner, and, insofar as the record discloses, the owner never undertook to convey the land. Possibly she had authorized such an agreement, but no proof thereof was
No election by the owner to sell appears to have been made prior to the death" of decedent, so that the widow could have taken nothing under the Kansas statute. But, as administratrix, she forwarded the draft purchased by decedent and procured the conveyance of the land in his name, and this wasv with the approval of the court. Section 3354 of the Code provides that the administratrix may, with the approval of the court, use funds belonging to the estate to purchase lands “claimed or contracted for by him prior to his death.” Undoubtedly he had contracted for this land, and the purchase was within the terms of the statute. Whether Boyer might have presented an abstract and warranty deed, such as described in the agreement, and maintained a claim against the estate for the entire purchase price, or must have been content with damages merely, is doubtful in view of the circumstances. But this is not material, inasmuch as the administratrix carried out the contract for the purchase of the land. The statute authorizing this does not determine for whose benefit such purchases shall be made. This may be done for the benefit of a devisee, where he takes the particular tract, and is ordinarily for the benefit of those who inherit the land. In this state, where there is no issue, the widow takes one-half and the heirs of the deceased husband the other half
The case is remanded for judgment in harmony with this opinion. — Modified and remanded.
Concurrence Opinion
I concur in the dissent of Mr. Justice Weaver. The owner of tbe land ratified the sale, and this was the equivalent of prior express authority. The widow should not be charged with any part of the purchase price. The land having been paid for, the widow was entitled to it under the Kansas statutes.
Dissenting Opinion
I dissent from the conclusion announced as to the item of $1,750. In my judgment, the ruling of the trial court in this respect should be reversed.