188 Iowa 471 | Iowa | 1920
“The court of the county in which a will is probated, or in which administration or guardianship is granted, shall have jurisdiction co-extensive with the state in the settlement of the estate and the sale and distribution thereof; and a certified copy of any order, judgment or deed, affecting real estate in any county other than that in which administration or guardianship is originally granted, shall be furnished to and entered by the clerk of the district court of the county where such real estate is situated in the probate records of said court.”
Either plaintiff or defendant, then, was entitled thereto, and in no event, both of them. As between several courts, jurisdiction to appoint an administrator of the estate of deceased persons attaches to the court invested with probate powers for the county of his residence at the time of his death. 1 Woerner on American Law of Administration (2d Ed.), Section 204. It is so declared by statute in this state. The first paragraph of Section 225 of the Code, provides that:
“The district court of each county shall have original and exclusive jurisdiction to probate the wills of, and to grant administration upon the estates of, all persons who at the time of their death were residents of the county, and of nonresidents of the state who die leaving property within
In appointing an administrator under this statute, the court necessarily decides whether decedent was a resident of the county over which its jurisdiction extends; for, without so finding, it would be without jurisdiction to appoint. Decisions are not wanting in which it is held that, in a collateral proceeding, proof may be received, showing such finding erroneous; that decedent was not such resident of the county at the time of his death; and that the grant of letters of administration was void ab initio, for want of jurisdiction. Perry v. St. Joseph & W. R. Co., 29 Kans. 420; People’s Sav. Bank v. Wilcox, 15 R. I. 258; Olmstead Appeal, 43 Conn. 110; Miller v. Swan & Brown, 91 Ky. 36. But, as remarked in 1 Woerner on American Law of Administration (2d Ed.), Section 204:
“The more reasonable doctrine is gaining ground, and is now"held in nearly all the states, that letters so granted, while they are voidable when properly assailed, are valid until revoked in a direct proceeding.”
Coltart v. Allen, 40 Ala. 155; In re Estate of Griffith, 84 Cal. 107; Tant v. Wigfall, 65 Ga. 412; Record v. Howard, 58 Me. 225; McFeeley v. Scott, 128 Mass. 16; Johnson v. Beazley, 65 Mo. 250; Bolton v. Schriever, 135 N. Y. 65; Lyne v. Sanford, 82 Tex. 58. The probate court is a court of general jurisdiction in this state. Reed v. Lane, 96 Iowa 454; Myers v. Davis, 47 Iowa 325; Read v. Howe, 39 Iowa 553. See Cooper v. Sunderland, 3 Iowa 114; Beresford v. American Coal Co., 124 Iowa 34.
Under Section 250 of the Code, the clerk of the district court is authorized to make “the appointment, when not contested, of resident administrators, executors, and guardians of minors, and the approval of any and all bonds given,'” and his action therein may be reviewed by the court, at the instance of an aggrieved party at the succeeding
The doctrine that administration granted in a county other than that of decedent’s residence at the time of his death is voidable, rather than void, tends for conservatism, and will avoid largely the evil consequences which might follow in the wake of a different conclusion. Where the question, as in this case, is one of doubt as to the county to which administration belongs, there might be two administrations, debtors might be subjected to verdicts by different juries, and possibly two judgments for the same debt, but by different courts. Confusion might result as to the title of property, both real and personal. We are contented with the doctrine which has prevailed in this state for more than 40 years, and have no hesitancy in deciding that administration granted by the district court of Linn County may be assailed only by direct attack, and, until thus assailed and set aside, there can be no administration of the estate in any other county. In other words, there can be but one grant of administration on the same estate, and jurisdiction, having once attached, will continue until set aside on direct attack by someone interested in the estate. In re Estate of Griffith, 84 Cal. 107 (23 Pac. 528) ; Chow v. Brockway,
“If the person be dead, and a personal representative has been appointed, no other court in the same jurisdiction has authority to appoint, another representative, and such second appointment may be collaterally attacked. If there be a representative for- the deceased already appointed, no court sitting within the same state has authority, in the absence of statute, to appoint another.”
Hooper v. Scarborough, 57 Ala. 510; Post v. Caulk, 3 Mo. 35 (Republication 3 Mo. 26). Andrew v. Avory, 14 Grattan (Va.) 229 (73 Am. Dec. 355), was cited in support of this holding. In the last-named case, after declaring that the appointment of an administrator is voidable only on citation or appeal, and might not be questioned in any collateral proceeding, the court said:
“There must be an office, and that office must be vacant, in order to a valid appointment of a personal representative. Until then, there is, in fact, no ‘subject-matter,’ to be within the jurisdiction of the’ court. That subject-matter is, the appointment of a personal representative to a decedent who has none, and whose personal estate is, therefore, without an owner. The validity of an order making an appointment must depend on the existence of that state of things. And, though the court must inquire into these preliminary facts, and in some sense adjudge them, in every case in which it makes an appointment; yet the judgment, to that extent, is incidental and inconclusive. If, in fact, there be a decedent without a personal representative, an order of a court of general jurisdiction on that subject, appointing one, is as conclusive on the question of jurisdic
See Griffith v. Fraizer, 8 Cr. (U. S.) 1, 9 (3 L. Ed. 471). There, the court held that an administrator of an estate might not be appointed during the temporary absence of an executor. Coltart v. Allen, 40 Ala. 155 (88 Am. Dec. 757), was also cited, and the court reaches a like conclusion.
It appears that thé plaintiff entered into negotiations for the adjustment of claims presented to the defendant as administrator, and filed with the clerk of the district court of Johnson County, and it is argued that he is estopped thereby from asserting the invalidity of the defendant’s appointment. There is no pretense that anything plaintiff did induced Benish to apply for administration in Johnson County, or Sulek to qualify as administrator. All Kladivo appears to have done was to negotiate settlement of the claims and costs of administration, and to pay over to Sulek several hundred dollars in money. The latter still retains the money, and there is no ground for saying that any prejudice has resulted from the negotiations, or from having