168 Iowa 372 | Iowa | 1915
Travers D. Munger was killed in a collision on the Chicago, Bock Island and Pacific Bailroad, September 10, 1912, leaving him surviving a widow, Ada K. Munger, the administratrix, and two minor children, by a former wife, Mary Munger, from whom he was divorced, August 23, 1912, the day of his second marriage, and who is guardian of the children. The administratrix entered into a contract with W. C. Strock "to take charge of the collection of the claim of first party against the Chicago, Bock Island & Pacific Bailway Company or others, arising out of the injury and death of the decedent, Travers D. Munger, said second party to have the exclusive charge of the settlement of litigating of said claim.
"In consideration of the services rendered and to be rendered herein, the first party agrees to pay to the second party a sum equal to one-third (%) of the amount collected, in the event such collection is without suit commenced, and, in the event of suit commenced, a sum-equal to one-half (%) of the amount collected.
"It is agreed by and between the parties hereto that all the necessary costs incident to the preparation and trial shall be first paid from the amount realized on said claim.
This was duly signed by the parties and an ex parte order entered by the court being signed by a judge, directing the attorney to proceed to collect the damages by suit or otherwise according to the contract and approving the same. Suit was begun December 23, 1912, and on June 7, 1913, was settled by the payment of $199.65 funeral expenses, including the undertaker’s charge, and $1,875.35 as damages. Of this, the administratrix claims to have paid the attorney $937.68. and she prayed that such payment be approved and that she be directed to pay $57.50 for services of such attorney rendered in connection with the administration of the estate. The guardian resisted by asserting that the order of the court approving the contract, being ex parte, was not binding on the estate or those entitled thereto, that the amount agreed upon and alleged to have been paid was excessive, unreasonable and unconscionable, and objection was made to payment for services incident to the administration because of no showing of services having been rendered and for that such services were not in behalf of the administratrix as such. A demurrer on the ground that the facts alleged in the resistance were not sufficient to obviate the contract as approved by the court was overruled and, the cause coming on for trial, the administratrix waived offering any evidence in support of her application. The guardian adduced the evidence of three witnesses and the administratrix called three in rebuttal. The decree denied payment of $57.50 because of the services not being rendered for the administratrix as such and “ordered that as to the Contract of Employment by the Administratrix of W. C. Strock to prosecute the claim of the Estate against the Chicago, Rock Island & Pacific Railway, and the Order authorizing and approving the same, which was entered on the 19th day of October, 1912; remain as it is entered, and not
The powers, duties and obligations of the executor or administrator with respect to the estate are defined and limited by the will or statute. He has no implied powers beyond those necessary to effectuate the powers expressly conferred. In the absence of testamentary provisions to the contrary, he is entitled to the possession of all personal property of the estate in trust for the purpose of settling all contracts, claims and obligations of decedent. Without interest in the assets, he is without power of imposing a charge on them by any new and independent contract, unless expressly authorized by statute or will, even though it be for the benefit of the estate. Hayes v. Shirk, 78 N. E. 653; May v. May, 7 Fla. 207, 68 Am. D. 431; Pike v. Thomas, 62 Ark. 223, 54 Am. St. 292; Sumner v. Williams, 8 Mass. 162, 5 Am. D. 83; Davis v. French, 20 Me. 21, 37 Am. D. 36; Smith v. Brennan, 62 Mich. 349, 4 Am. St. 867; Fletcher v. American Trust and Banking Co., 111
Of course, the executor or administrator may at his discretion contract with reference to necessary matters relating to the estate, but he does so on his personal responsibility, even though he may be entitled to be reimbursed out of the funds of the estate. Being without power as administrator to enter into a new or independent contract in behalf of the estate, such a contract, though póssibly obligatory on her individually, was a mere nullity as against the estate and the order of court was ineffectual to vitalize it. Such was our conclusion in Rickel v. C. R. I. & P. Ry. Co., 112 Iowa 148. The order should have been disregarded and the contract accorded consideration only as showing the employment of counsel by the administratrix individually, and this on terms that compensation should be contingent on recovery.
III. The items making up the claim for $57.50 were specifically stated, but many of them on their face did not appear to involve matters necessarily of concern to the estate and-none were self-explanatory. To illustrate, the first was for 1 ‘ consultation with Mrs. Ada Munger on the death of her husband and in relation to estate matters. ’ ’ She had not been appointed administratrix and for all that appears, the consultation may have pertained to her individual interests only. The ■ next item relates to consultation with her and a Mr. Sinon, but about what? Therein is included the preparation of petition for letters of administration and a talk with counsel for the former administrator.
These and other items may have been sufficiently specific to meet the requirements of good bookkeeping, but did not of themselves indicate either their necessity to the estate or the reasonableness or justness of the charges. The burden was on the administratrix to so prove, and having failed to adduce any evidence thereon, the district court did not err in rejecting these items.