155 Iowa 254 | Iowa | 1912
Ira H. Fry died intestate March 10, 1910, leaving his widow, Arminda C. Fry, and Abner Fry, his father, surviving. The widow was duly appointed administratrix of his estate, and qualified as such on March 22, 1910. She gave bond in the sum of $12,000, which bond was accepted and approved, and no. question is made regarding its sufficiency. An inventory was filed in due
Administratrix also petitioned the probate court for authority to purchase a monument for the deceased and for an allowance for the permanent maintenance of a cemetery lot at an expense of $500. To this petition plaintiff herein filed a resistance. Thereafter plaintiff herein filed a petition for an examination of the administratrix on the ground that she had not inventoried all the property of the estate, but, on the contrary, was holding the same as her own, and failing to return an inventory thereof. To this the administratrix filed objections. Thus matters stood when plaintiff commenced this proceeding to remove the administratrix,
The real controversy, as will be observed from the foregoing statement, is between plaintiff, who is the father of the deceased, and the defendant, who is his widow. The father, who is a non-resideñt of the state, and, save the widow, the only heir of his deceased son, is objecting to everything the widow has done or is proposing to do, even to the erection of a monument and the maintenance of a burial lot, and is asking the allowance of a claim against his deceased son’s estate, and the widow is claiming practically all of the estate of her deceased husband and resisting the father’s claim upon the note. She has paid all debts against the estate and has petitioned for an allowance for erecting a monument and the maintenance of a burial lot, and. this allowance, if made, will, with the amount al.ready paid in the way of debts, practically absorb all the property which' she inventoried as belonging to the estate. All the other property, save real estate situated in one of the Dakotas, she is claiming as her own, and, because of that fact, she failed to inventory the certificates of deposit issued by the Marshalltown banks, amounting, with interest, to something like $10,000. The real contest seems to- center upon these certificates of deposit. Because of her claim thereto and to other property said to have belonged tó the deceased, she petitioned the court for the appointment of a special administrator under the provisions of section 3346 of the Code, and this petition was pending and undisposed of when the order for removal was made. Plaintiff did not see fit to press his claim upon the note to a hearing and he did not insist upon an order for the examination of the administratrix- with reference to any assets of the estate in her hands.
As the trial court expressly found that the administratrix was not guilty of any maladministration, but planted its order solely upon the ground that, as she was claiming practically the entire estate, her position was so inconsistent and so subversive of the best interests of the estate that she should not serve, we have to determine whether or not such a situation justified the removal of one whom the law favors for such an appointment. It is true that the administratrix is claiming practically all of the estate after the payment of debts, funeral, and other expenses, including monument and burial lot; but her claims have been open and aboveboard and she has asserted them in a proper manner, both by petition to the court in which she made plaintiff herein a party, and by application for the appointment of a special administrator to pass upon her claims as is authorized by section 3346 of the Code. True, her claims are in hostility to the interest which plaintiff is claiming as father of the deceased; but no more so than any other claim against the estate would be. Defendant can take nothing without an order of court, and has no advantage over the plaintiff in virtue of her appointment as administratrix. If plaintiff claims, as he seems to do, that she is withholding any of the assets of the estate, he has his remedy of which he started to avail himself, to-wit, an examination of the defendant in open court touching any assets of the estate in her possession or control. See Code, sections 3315, 3316, 3395. And in. this particular, the widow having made application for confirmation of her claims to the estate, plaintiff had a plain, speedy and adequate remedy by forcing a trial upon that issue. While
In providing for the appointment of a temporary administrator in such cases (Code, section 3346), the Legislature clearly indicated that it 'did not consider this a ground for removal. Here the plaintiff has ample protection, and he might easily have availed himself of any one "of several remedies rather than to proceed with a summary action for removal which in the end will profit him nothing; but will deprive the widow of a statutory right which the Legislature has given her. Had plaintiff shown the same desire to secure an adjudication of the defendant’s claims as he has to humiliate the widow by securing her removal from her trust, he might have had the issue between him and his daughter-in-law fully settled. Instead, he has secured nothing more than an order of removal which in the end is of no profit, unless there be something in mere delay.
We are constrained to hold that the order for removal should not have been made. As supporting these conclusions, see In re Fisher's Estate, 128 Iowa, 626; McFarlan v. Mc Farlan, 155 Mich. 652 (119 N. W. 1108); Odlin v. Nichols, 81 Vt. 219 (69 Atl. 644); Gill v. Riley (Ky.) 90 S. W. 2. Appellee’s motion to dismiss the appeal because the evidence was not duly and properly preserved is ovenruled.
It follows that the orders of the district court must be, and they are, reversed, and the cause remanded for such as are in harmony with this opinion. — Reversed and remanded.