Bare v. Cole

• Decision Date: 02 April 1935
• Docket Number: 42784.
• Parties: BARE v. COLE et al. (METCALF et al., Interveners).[a1] TENER v. TENER et al.
• Court: Iowa Supreme Court

260 N.W. 338

220 Iowa 338

BARE v. COLE et al. (METCALF et al., Interveners).^[a1]

TENER v. TENER et al.

No. 42784.

Supreme Court of Iowa.

April 2, 1935

Appeal from District Court, Marion County; E. W. Dingwell, Judge.

A garnishment proceeding under a general execution, and objections to a guardian's final report in probate, were combined for trial in the district court. The court entered a judgment against the garnishee and sustained the objections to the final report form which judgment and probate order the garnishee, the guardian and the interveners have taken this appeal.

Affirmed.

L. D Teter, of Knoxville, and Watson & Watson, of Indianola, for appellants.

Vander Ploeg & Heer, of Knoxville, for appellee.

RICHARDS, Justice.

The issues may be more readily stated by first reciting the following underlying facts: William T. Tener, Sr., died testate in December, 1919, survived by a widow and several children. One of these children, Walter Tener, was an incompetent. A portion of the will of this decedent was in the following words:

" I direct that the sum of Four thousand dollars ($4000.00) be set into a trust fund to be used for the care and benefit of my afflicted son, Walter Tener. I further direct that my daughter, Mrs. Nora Cole shall be appointed trustee of said fund, and that she shall continue as such trustee so long as she shall make a proper home for the said Walter Tener, with herself, and shall give him proper care. The fund shall be held under the direction of the Court and the interest derived from the loaning of the principal sum shall be applied in defraying the necessary and proper living expenses of the said Walter Tener. The principal sum of Four Thousand Dollars is to be kept intact until the death of the said Walter Tener, at which time all the funds in the hands of the said trustee, Nora Cole, shall be given to the said Nora Cole to be her own individual property as compensation for having assumed the obligation of making a home and giving proper care of the said Walter Tener. In case of the death of the said Nora Cole prior to that of my said son, Walter Tener, or should it become impossible for her to continue the obligation assumed then and in that event the said Nora Cole or her estate shall be paid whatever portion of the principal sum of Four Thousand Dollars as the court shall deem just and equitable and the balance of said funds shall be further continued in trust under the direction of the Court and the further care of the said Walter Tener and compensation therefor shall be conducted as the court may deem proper. The above shall constitute all the bequest that shall come from the funds of my estate to the said Walter Tener."

On August 27, 1920, the widow and children and the beneficiaries of William M. Tener, Sr., including Nora Cole, but excepting the incompetent beneficiary, Walter Tener, executed the following instrument:

" We, the undersigned surviving widow and children of William M. Tener, Sr., Deceased, and all beneficiaries under the terms and provisions of the Last Will and Testament of the said decedent, hereby authorize and direct the Executors of the said estate to pay over to Guardian of the person and property of Walter Tener the sum of Seven Thousand ($7,000.00) Dollars out of the gross proceeds of said estate. We do this for the purpose of increasing the amount bequeathed to the said Walter Tener by the terms of the said Will, believing, as we do, that the said Walter Tener should have as his own the said sum of $7,000.00 in order that he may be properly cared for and supported.

And we hereby assign and set over to the said Walter Tener out of our portion and share of said estate a sufficient sum of the portion and share bequeathed unto us to make up the difference between the amount which said Will bequeaths to the said Walter Tener and the said $7000.00; and the said executors are hereby directed to pay over the said sum of $7000.00 to said Guardian and take the Voucher of said Guardian therefor."

On October 1, 1920, Nora Cole, one of the heirs and beneficiaries mentioned in the will, was appointed and qualified as guardian of the person and property of Walter Tener, incompetent, and as such guardian received from the executor of the estate of William M. Tener, Sr., pursuant to the above instrument of August 27, 1920, the sum of $7,000. This guardianship continued until the death of Walter Tener on July 16, 1930. The appellee, Mrs. Alice Bare, had obtained a judgment against Nora Cole in October 1923, for $4,084 with interest and costs. Under a general execution, issued on this judgment, Nora Cole, trustee, was garnished on August 11 1930, as a supposed debtor of Nora Cole in her personal capacity. Answers were filed, in the garnishment proceeding, by Nora Cole as trustee and guardian and by Nora Cole as the judgment debtor, alleging that by reason of the instrument of August 27, 1920, above set out, Nora Cole had renounced the provision in the said will giving her $4,000 at the death of Walter Tener and had agreed that the said amount should be thereafter the absolute property of the incompetent Walter Tener, and that by reason thereof Nora Cole as trustee and guardian had in her hands no funds belonging to Nora Cole. The administrator of Walter Tener, and the widow and beneficiaries of William M. Tener, Sr., filed petitions of intervention, alleging the same matters set out in the answer of Nora Cole. These were the issues involved in the trial of the garnishment proceedings:

On August 19, 1930, Nora Cole, as trustee and guardian of Walter Tener filed a final report asking that she be authorized to turn over all assets in her hands to the administrator of the estate of Walter Tener, deceased. Appellee, Alice Bare, filed objections to this final report claiming that she had acquired an interest, by reason of the garnishment proceedings, in such of said funds as belonged to Nora Cole, and this was the issue upon which were tried the objections to the final report.

Appellants say the court erred in entering judgment in the garnishment proceedings against Nora Cole as trustee in favor of the judgment creditor Alice Bare, because the instrument of August 27, 1920, effected a renunciation by Nora Cole of all her interest in the $4,000 given to her at the death of Walter Tener by the terms of the above will, and vested in Walter Tener the absolute title therein. Appellan...