89 Iowa 543 | Iowa | 1893
To a proper consideration of the case, it is important to understand the character of the claims that make up the amount of the judgment. The record is somewhat obscure in some respects. The following from the judgment entry in that case, will show the necessary facts:
“The court also further finds that on the twenty-fifth day of April, 1889, the said John Bullard, as such executor, made a report of his doings to this court, and it was shown by said report that he had in his hands four thousand, two hundred and seven dollars and five cents as such executor, and as further shown • by certain citation proceedings in this court, that the said John Bullard had appropriated all of said funds to his own individual use. The court further finds that on the sixth day of December, 1889, the plaintiff, after making due demand for the legacy due her under the will of her father, upon said executor, commenced an action upon the executor’s bond in this court, seeking to recover the amount due her thereunder, and that said proceedings were compromised, and under the terms of the compromise the defendant was to pay to this plaintiff the sum of one thousand, two hundred dollars and that said executor, John Bullard, and his wife, and the defendant herein, made and executed their promissory notes to the plaintiff, bearing date January 10,1890, payable in one, two and three years, in the sum of four hundred dollars each; and it is also further found, when the plaintiff accepted said notes,'it was expressly understood and agreed that the said defendant would secure the payment thereof; that he had been requested so to do? but*546 refuses to give the plaintiff any security, and the plaintiff has tendered said notes back to the defendant, and he has declined to receive the same, and that said notes are now in the possession of the plaintiff herein, subject to the defendant’s order and control. It is further found by the court that there is still due this plaintiff, under the will of her father, which has been hereinbefore referred to, and as coming from the said defendant under the provisions thereof, after applying all the personal property found in the hands of the executor, the sum of seven hundred and fifty dollars and that she has made demand upon said defendant for payment thereof, and said defendant refused, and still refuses, to make payment to her of said amount.”
It will be seen that the items of that judgment are, first, one thousand, two hundred dollars,, agreed to be secured under the compromise of a suit on the executor’s bond, and seven hundred and fifty dollars, being the one half of the amount remaining due the plaintiff from Sylvester and Herbert because the “personal property and money” were-not sufficient to pay the bequest of five thousand, six hundred dollars, with, probably, the interest on the two items. The district court, in this case, decreed that part of the judgment in that case representing the seven hundred and fifty dollars,, with the interest -thereon since August 5, 1891, a lien on the real estate in question, but denied such a lien as to the remainder of the judgment, being that part representing the one thousand, two hundred dollars and interest. The defendants do not appeal, and hence the controversy is as to the right of the plaintiff to have the balance of the judgment, also, a lien.
It will be well to first consider the effect of the will upon the real estate devised to Sylvester for the payment of any deficiency because of the personal estate being insufficient to pay the bequest to the
We may now properly consider the case as to the one thousand, two hundred dollar item, and it is to be kept in mind that this item is not one arising out of a deficiency of the personal estate to meet the bequest to the plaintiff, as contemplated by the testator, but it arises out of a loss to the estate by the miscondúet of the executor selected by the testator to carry out the terms of his will. It will be well to first consider how the estate should be affected by such a loss, without reference to any questions pertaining to the bond; that is, without reference to the suit on the bond, or the fact that Sylvester Griffis was a surety thereon. Viewing the case in the light of a loss of upwards of
We do not understand from the record that, of the defalcation, more than one thousand, two hundred dollars due from Sylvester, and forming a part of the
The suit on the executor’s bond was concluded without judgment, and there has been no adjudication
These considerations lead to the conclusions that the decree of the district court should be so far modified as to include in its lien the entire judgment for one thousand, two hundred dollars, and interest. This conclusion has the charm of being absolutely just, as between the parties, and not permitting a transaction of at least doubtful integrity to place the property where the intent of the testator would be defeated. The costs of this suit in both courts will be taxed to appellees. The judgment of the district court is modified AND AFFIEMED.