123 Iowa 747 | Iowa | 1904
Without considering in detail the specific objections made to the report of Toms as administrator, we can satisfactorily dispose of the ease, and decide the questions of law and of fact which have been presented to us, by reviewing the disposition made by Toms, as administrator, of the funds derived by him from the decedent’s estate, and reach a conclusion as to the amount for which Toms should be required to account to the estate of Mary Johnson. It is necessary to work out the accounting- in a somewhat different method from that suggested by counsel on either side, as neither of the methods followed in reaching a result is free from error. Joseph Johnson died seised- of three tracts of real property, and possessed of a very small personal estate. He left no children, and his surviving widow was under guardianship for insanity. - His personal property was entirely inadequate to pay claims, and it was necessary to sell the real estate, and Toms, as administrator, secured proper orders .for such sale. The.first question with.which we are confronted is’as-to the proper division of the proceeds of the real estate. Before proceeding further, however, it is necessary to take into account the. fact that the administrator took possession of the real estate of the deceased, there being no resident heirs, and .collected $400 as rent. On the-other hand, he expended $705.31 in caring for the real estate and satisfying the costs of sale. We have no doubt as to the administrator’s right to apply the rents in payment of taxes, repairs, and'insurance; and, so far as the-heirs are concerned, the balance of rents, after satisfaction of these expenses, may
But so far as the widow was concerned, she was not chargeable with the expenses of the administrator in caring for the property, nor in making sale thereof. As widow, she was entitled to one-third in value of the real estate, to be set off to her on application, free from any charge for debts. Neither her guardian, before her decease, nor her administrator since, has made any application for sale of real estate for the purpose of setting’ off her dower interest, and we think that her administrator is now entitled to take in lieu of her dower interest one-third of the gross proceeds of the sales. That the widow’s dower right is not to be diminished on account of - taxes paid on her husband’s real estate after his death, and before the setting off of dower, has been decided in Felch v. Finch, 52 Iowa, 563; and, following the reasoning of that case, we reach the conclusion that, as to tbe one-third of the proceeds of the real estate, the administrator of the husband’s estate has no right to set off any expenses incurred either in managing the property, or in having it sold for the purpose of paying the debts of the deceased. The three parcels of real estate were sold for $5,281, and of this amount the widow was entitled, absolutely and without deduction, to one-third, or $1,760.33.
As Joseph Johnson left no issue surviving him, his widow iras entitled, however, under Code, section 3379, to one-half of his estate. But the portion to which she ivas entitled as widow by reason of want of issue, so far as it exceeded her one-tliird dower interest, was subject to the payment of debts; that is, after deducting her one-third as dower, the remainder of the proceeds of the real estate, together with the proceeds of the personalty, was subject to tile payment of claims against the estate, and she was entitled to 'one-fourth of Avhatever remained. Smith v. Zuckmeyer, 53 Iowa, 14; Wilcke v. Wilcke, 102 Iowa, 173.
The trial court should therefore have sustained the objections to the administrator’s report, and directed him to pay over to the administrator of Mary Johnson the amount above indicated; and the judgment of the trial court is therefore modified, and the case is remanded, with the direction that a judgment be entered in .accordance with this opinion. The costs of this appeal are taxed to appellee. — Modified and AFFIRMED.