In re Heath's Estate

58 Iowa 36 | Iowa | 1882

Bothbook, J.

1. PRACTICE: evidence : abstract. I. A question is made as to whether the decree of the District Court, by which the partnership was dissolved, and the partnership affairs adjusted, was introduced in evidence before the referee, and,, whether or not it is properly part of the record. We think it should be held, to have been introduced- in evidence. While the question as to its actual introduction in evidence is somewhat in doubt, yet the report of the referee, or part of it at least, is founded upon the decree, and it therefore must have been considered by him.

II. It is strenuously urged that the evidence has not all been abstracted by appellant, and that although the abstract states that it is an abstract of all the evidence, yet that it shows upon its face that this is not true. It is said the transcript contained some 2,700 pages. It must be largely made up of extended items of account, and possibly of the books of the partnership, and many other matters which are wholly immaterial to be considered in determining the case. Who is responsible for requiring the expenditure necessary to make such an enormous record we need not inquire. In the view we take of the case we will consider it as though all the evidence, necessary to the determination of the errors assigned, is presented in the abstracts by the respective parties.

2. ESTATES of decedents : appointment of referee. III. Some question is made by counsel for appellant, as to tbe power of the court to appoint a referee, in proceedings this character. We think the power is clearly conferred by Sec. 2112 of the Code, which provides ^hgt “in matters of accounts of executors the court shall have authority to appoint one or more referees who shall have all the powers and perform all the duties of referees appointed by the court in a civil action.

3. — : — :practice. IV. The items which make up the amount, found to be due from the administrator, consist largely in alleged mistakes not carrying forward certain items or charges against him, from one report to the succeeding reports. The finding of the referee is conceded by counsel for appellant to have the force and effect of the verdict of a jury. On its face, and on the face of the reports, the findings of the referee appear to be correct. Counsel for appellant claim, however, that the report of the referee is wholly without support from the evidence, and undertake to demonstrate this claim by certain figures and computations. On the other hand counsel for appellee makes a like demonstration, which he claims shows conclusively that the report of the referee is absolutely correct as to these items. We confess that we are utterly unable to determine which is correct, in view of the testimony of the administrator, in connection with the reports and accounts, so far as they are capable of being understood. It is proper to say that the attempt for several years to settle the affairs of the partnership in the probate court, and then the change made by attempting to drop the partnership affairs from the administrator’s reports, created such confusion that nothing in connection with the matters in dispute is, or can be, reduced to certainty. Wé have therefore concluded to allow the report of the referee to stand, simply because we cannot say that it is without support from the evidence.

4. —: reports of administrator. V. As to the exceptions to the report of the referee by the heirs, and their appeal, we have but to say that we can see no reason why the same was erroneously approved. f x , „ f x. l'lie progressive reports made from time to time were approved by tbe court. In Latham v. Myers, 57 Iowa, 519, we held that orders of a probate court allowing a guardian certain charges, for tbe support of bis wards, are to be regarded as binding upon tbe wards so far, at least, as to establish prima facie tbe right of tbe guardian to ka've credit for the sums allowed. So in this case, the orders approving the progressive reports must be regarded as correct, and it is incumbent on the heirs to show that they were incorrect and fraudulent, as claimed by them. We think tbe referee was warranted in finding from the evidence that no such showing was made.

5. — : administrator : costs. YI. The order of tbe court below required the administrator to pay “all costs in the matter of the settlement of said estate, including all costs of contests of said final report.” This, we think, was erroneous. The administrator should only be required to pay tbe costs occasioned by tbe contest arising upon tbe exceptions to bis report. Indeed, we would have been better satisfied if tbe referee bad apportioned tbe costs of tbe contest, as the contestants were successful in but one or two items of their exceptions. But we are not disposed to interfere with the discretion which he and tbe court below bad tbe ‘right to exercise. All tbe costs in tbe matter of settlement of tbe estate is quite another matter, however. There was no authority for charging up any costs to tbe administrator, excepting such as it was found be wrongfully made. The order of the Circuit Court will be modified so far as to require the administrator to pay the costs of the contest only. And this modification will require the heirs and contestants to nav tbe costs occasioned by this appeal.

Modified and affirmed.