65 Iowa 475 | Iowa | 1885
It is alleged in the petition, as amended, that in the year 1868 Peter Strain died intestate, leaving a widow and three minor children surviving him, and that his widow, Charlotte Strain, (now Charlotte Phenice,) was, on the fifteenth of April, 1868, appointed admistratrix of his estate; that she gave a bond, with the other defendants as sureties thereon, conditioned for the faithful performance by her of the duties which should be imposed upon her by law as such administratrix; that there came into her hands as assets of said estate personal property of the value of $7,110.59, and that she returned an inventory thereof as required by law,
The grounds on which it was sustained by the circuit court are — (1) that the bond was to the county judge and his successors in office, and plaintiff is therefore not authorized to sue thereon; and (2) that it appears from the averments of the petition that the property which came into the hands of the administratrix has long since been disposed of and converted into money, and the proceeds converted by the administratrix to her own use, and, as neither the property nor the proceeds are now assets of the estate, plaintiff has no interest therein,
It is alleged in the petition that the administratrix never published a notice of her appointment as required by law. If this be true, (and its truth is admitted by the demurrer,) the time for filing and proving claims against the estate had not expired at the time of her removal; for claims not then filed were not barred by section 2421, and the time for paying claims, as provided by-section 2422, had not yet arrived, for by that section the administratrix was required to begin the payment of claims only upon the expiration of the time for filing claims of the third class. It could not be determined, then, at the time of her removal, what the amount of the claims against the estate was, and consequently it was uncertain whether the assets of the estate would pay the whole of the claims or not. It could not be determined then what amount any creditor was entitled to receive, for the administrator is warranted in paying the full amount of any claim only when it is definitely ascertained that the assets of the estate are sufficient to pay all claims of the classes which are preferred to it, and the full amount of those of the class to which
This holding is not at all in conflict with Kelley v. Mann, 56 Iowa, 625. The fund which the administrator de bonis non sought to recover in that case was the proceeds of a policy of insurance on the life of the intestate, which had come into the hands of the first administrator. Under the provisions of the statute, this money could not be appropriated to the payment of the debts of the estate, but descended directly to the heirs. The holding was that the substituted administrator was not entitled to the fund, but that the sureties on the bond of the first administrator were answerable on the bond to the heirs for their distributive shares. If there were no claims against the estate in this case, it would be governed by the same principle. The heirs would have their action on the bond for their distributive shares of the fund, but plaintiff would have no interest in it. But until the amount of the debts of the estate is ascertained, and they are paid out of this fund, the heirs can assert no claim to it. Their interest is in the residue remaining after all claims against the estate are paid.
The judgment of the circuit court will be reversed, and the cause will be remanded for further proceedings in that court.
Beversed.