144 Iowa 519 | Iowa | 1909
Mary Ann Acken, a resident of Bremer County, died intestate on or about May 12, 1908. Thereafter, and on August 1, 1908, Cleon W. Acken, a son of the deceased, filed in the office of the clerk of the Bremer County district court a petition for the appointment of an administrator. In this petition Acken asked for the appointment of Frank A. Lee. Lee filed a bond with proper sureties approved by the clerk, and letters of administration immediately issued to him, signed by the clerk of the district court. He immediately caused notice of his appointment to be published according to law, and filed a list of the heirs and a description of the real estate. No inventory of the personal property was filed, nor had any claims been filed, when the court made the orders in the case hereinafter referred to. The statement as to the heirs discloses that Cleon W. Acken, a son, and I. B. Rust, a daughter, are the sole and only heirs of the deceased, and that they are both of full age. Thereafter, and on August 25, 1908, I. Belle Rust, one of the heirs, filed a motion to transfer the application for the appointment to the district court, and accompanied this application with objections to the appointment of an administrator, claiming that deceased left no property, and had no debts at the time of her death. The administrator objected to this application, claiming that deceased left property to be administered upon, which property was in the possession of I. Belle Rust. Other objections were made which we shall hereafter notice. The entire matter was transferred to the district court and heard at regular session thereof,- resulting in an order denying the motion to set aside the appointment of the administrator and confirming the appointment. I. Belle Rust
On November 1 of the same year the administrator filed a petition for an order to examine I. Belle Bust on the theory that she had property belonging to the deceased which she had taken wrongfully and without authority. On the same day an order was entered by the district court granting the petition and fixing a time for the examination of Mrs. Bust. The time so fixed was November 9. When the time arrived, Mrs. Bust filed a resistance to the order and a showing as to why the examination should not be had. Among other objections was the claim that, as an appeal had been taken from the previous order confirming the appointment of the administrator and a supersedeas bond filed, the trial court was without jurisdiction to proceed any further. These matters were submitted to the court, and the following order made thereon: “It is ordered that the application and motion in resistance to order for examination is overruled and denied, and said I. Belle Bust is ordered to reappear and submit to such examination on the 19th day of November, 1908, at two o’clock, to all of which ruling and order she excepts.” Seasonable appeal was taken from this order. The case comes to us on these two appeals, and the questions involved are largely of law. Appellant contends that no administrator should have been appointed, for the reason that the deceased had no debts and no property to be administered upon; that if there be any right to any property in her hands it was one accruing to Cleon W. Acken as heir, and not to the personal representative of the deceased. She further contends that after the first appeal the court had no further jurisdiction of the matter, and that the order for examination was without authority and void.
These several questions necessitate an examination of the facts disclosed by the record, and to a proper understanding of the points involved a statement of the exact
That your petitioner believes that said Mary Ann Acken died seised of a considerable amount of personal property, including moneys, notes, and other evidences of indebtedness and securities, the amounts and description thereof your petitioner is unable to state, because the same is under the control and custody of the said Mrs. I. B. Bust. The said Mrs. I. B. Bust makes some pretended and false claim or title therein and possession thereof, as well as the real estate hereinbefore described, by reason of a false, fraudulent, and pretended written conveyance signed and executed by said Mrs. I. B. Bust, claiming to act as the agent and attorney in fact for the said deceased, Mary Ann Acken, conveying said real estate and personal property to Mrs. I. B. Bust, which conveyances are wholly void and of no force or effect whatever. That your petitioner further alleges that on account of his present nonresidence he is advised that he may not be entitled to act as administrator of the estate of his mother, Mary Ann Acken. He therefore asks that Frank A. Lee be duly appointed as the administrator of the estate of Mary Ann Acken, deceased, believing that the said Frank A. Lee, who is a resident of Waverly, Iowa, to be a capable, competent, and worthy person for such appointment.
In the application for removal of the proceedings to the district court Mrs. Bust made the following objections to the appointment of the administrator:
(3) That the said Cleon W. Acken does not state in said application that there is any personal property belonging to the alleged estate of the said Mary Ann Acken. He simply alleges a belief.
(4) That in said application the said Cleon W. Acken seeks- to vitiate, set aside, and hold for naught a certain
(5) That there is no property, personal, real or mixed, belonging to the alleged estate of Mary Ann Acken.
(6) That until a certain power of attorney, bill of sale, and warranty deed have been passed upon, set aside, and held for naught by a court of competent jurisdiction, there is no property belonging to the alleged estate of Mary Ann Acken, deceased.
(7) That prima facie there is no property belonging to the alleged estate of Mary Ann Acken, deceased.
In his objections to Mrs. Rust’s application the administrator filed a. statement, which contained these, among other, allegations:
That your administrator states and represents to the court that there is now, and was at the- time of his appointment, personal property belonging to and owned by said Mary Ann Acken, deceased, which personal property is now in the possession of the said I. Belle Rust, in Bremer County, Iowa, and that if his appointment is confirmed by the court, that he will proceed at once, under the direction of the court, to collect and recover said personal property; that the power of attorney and bill of sale mentioned and referred to in the application made by one Cleon Acken for his appointment as administrator is null and void, and has no legal effect whatsoever, all of which appears upon the face of said instrument.
He also filed the following as- an amendment:
That he attaches hereto a true and correct copy of the pretended bill of sale heretofore referred to in his original objection, and makes the same a part of his objections heretofore filed, marked - ‘Exhibit A,’ and your administrator further avers that the said Mary Ann Acken, deceased, was at the time of her decease and for many years prior thereto a resident of Bremer County, Iowa, and was at the time of her decease the owner of a large amount of real and personal property, deriving therefrom large profits as inter
Exhibit A, attached to the amendment of objection to motion, is as follows:
Know all men by these presents, that I, Mary Ann Acken, a widow, of Bremer County, State of Iowa, in consideration of the sum of one hundred and no-100ths dollars, in hand paid by I. Belle Rust, of Bremer County, State of Iowa, do hereby sell and convey unto the said I. Belle Rust, and to her heirs and assigns the following described goods and chattels, to wit: All mortgages, moneys, credits, certificates of deposit, etc., in fact, all personal property of every name and nature now owned by me and in my possession or that may accrue and become mine prior to my death. To have and to hold the same forever, and I, the said party of the first part, will forever warrant and defend •the said property against the lawful claims of all persons whatsoever. Signed the 7th day of December, 1905. Mary Ann Acken, by .1. B. Rust, Attorney in Fact.
This is the entire showing upon which the appointment of the administrator was confirmed, and the question here is: Was it sufficient to justify the order? Our code of probate procedure is very brief, and in many respects uncertain and unsatisfactory. On account of its brevity, the procedure has largely been worked out through custom and judicial decisions. The only statutes which have any bearing upon the question are the following: Section 225, Code:
Section 250: The cleric of the district court shall have and exercise within his county all the powers and jurisdiction of the court and-of the judge thereof, in the following matters: First. The appointment, when not contested, of resident administrators, executors, and guardians of minors, and the approval of any and all bonds given by administrators, executors, trustees and guardians in the discharge of their several trusts.
Section 251: Any person aggrieved by any order made or entered by the clerk, under the powers conferred in the last section, may have the same reviewed in court, on motion filed at the next term and not afterwards, unless upon good cause shown within one year, and upon such notice as the court or a judge thereof may prescribe. Upon the filing of such motion, the clerk shall place the cause or proceeding on the docket without additional docket fee, and the matter shall stand for hearing or trial de novo in open court.
Section 252: The records, orders and judgments made and entered by the clerk as hereinbefore provided, and not reversed, set aside or modified by the court, shall stand, and be of the same force, validity and effect, and shall be entitled to the same faith and credit, as if made by the court or by the judge thereof.
Section 3261: The district court shall always be open for the transaction of probate business.
Section 3297: In other eases, where an executor is not appointed by will, administration shall be granted: (1) To the husband or wife of the deceased; (2) to his next of
Section 3298: To each of the above classes, in succession, a period of twenty days, commencing with the burial of the deceased, is allowed within which to apply for administration.
Section 3303: After filing the bond, the clerk shall issue letters testamentary or of administration, as the case may be, under the seal of the court, giving the executor or administrator the power authorized by law.
Section 3305: Administration shall not be originally granted after five years from the death of the decedent, or from the time his death was known, in case he died out of the state.
As bearing upon the second appeal we quote the following :
Section 3315: The court or judge may require any person suspected of having taken wrongful possession of any of the effect of the deceased, or of having had such effects under his control, to appear and submit to an examination under oath touching such matters, and if on such examination it appears that he has the wrongful possession of any such property, the court or judge may order the delivery thereof to the executor or administrator.
Recurring again to administration in general, we quote the following:
Section 3362: The personal property of the deceased not necessary for the payment of debts, nor otherwise disposed of, shall be distributed to the same persons and in the same proportions as though it were real estate.
Section 3363: The distributive shares shall be paid over as soon as the executor or administrator can properly do so.
Section 3378: Subject to the rights and charges hereinbefore provided, the remaining estate of which the deceased died seised shall, in the absence of a will, • descend in equal shares to his children unless one or more of them is dead, in which case the heirs of such shall inherit his or her share in accordance with the rules herein prescribed, in the same manner as though such child had outlived its parents.
Section 342.1: All applications for orders in probate must be made in writing, verified and self-explanatory, so
These decisions point the way to the conclusion in this case. The time for the granting of letters had not expired when the petition for appointment was made. The heirs, although adults, were not able to agree either upon the amount of personal property owned by the deceased at the time of her death, or upon the proper distribution thereof. It was alleged that deceased owned certain propérty at'the time of her death, and that the title of Mrs. Eust thereto was colorable only and void. The title under which she claimed was set out and appears to be an instrument which she as attorney in fact for Mrs Acken made to herself. Under such circumstances, a cause of action to recover the property or a part thereof was in' someone — that is to say, under the allegations of the petition for appointment and in the other papers filed, it appears that either an administrator representing the entire estate or Cleon W. Acken, as a joint heir with Mrs. Eust, claiming one half of the property as such heir, had a right of action against Mrs. Eust, in the one case to recover the entire personal estate for the purpose of distribution to those entitled thereto, or in the other to recover the half which Cleon W. Acken, as an heir, was entitled to. There seems to be two purposes to be subserved in granting administration, one to collect the assets and pay the debts, funerals expenses, etc., and the other to collect the assets and make proper distribution thereof to those entitled thereto. If there be no debts, but the heirs entitled thereto are incapable of agreeing to a distribution, or if being capable, they are unable to agree upon a distribution, an administrator shall be appointed,
Ordinarily, it must be true that an administrator can only maintain such actions' at law as the intestate might, if living. This must be invariably so as to all' actions for the enforcement of rights grounded upon the inheritance. So far as the administrator represents the heirs, and the actions brought by him are to secure their rights or interests, he must be limited to such ,as the decedent himself
This rule seems to point to the conclusion already reached. There is no doubt under the showing made that deceased might in her lifetime have brought action to set aside the bill of sale under which Mrs. Rust claims. If that be true, then, under the rule of Cooley’s case, an administrator may bring the same kind of an action. If it appeared that there was an executed gift to Mrs. Bust, or a sufficient consideration which might be nothing more than natural love and affection, then, unless the rights of creditors intervened, neither the administrator nor the heir, Cleon W. Acken, could maintain an action.
Our conclusion that the administrator was correctly
‘ We have gone over the record with care, and discover no error of which appellant may justly complain. We have no occasion now to determine whether the administrator is a proper party to bring suit under section 3317 of the Code, as that question is not now before us. Nor should this opinion be treated as an authority holding that Cleon W. Acken can not in his own name bring suit to recover his part of the real and personal property said to have been left by the' deceased. He surely can not attack either conveyance on the theory that it is void as to creditors alone because made to defraud them.
Our conclusion on the whole case is that the orders must ‘each and all be, and they are, affirmed.