Brauch's Estate v. Beeck, 54079

• Decision Date: 10 November 1970
• Docket Number: No. 54079,54079
• Citation: 181 N.W.2d 132
• Parties: In the Matter of the ESTATE of Paul A. BRAUCH, Deceased, Appellants, v. Arlan H. BEECK, Clerk of District Court of Plymouth County, Iowa, and John A. Hoffman, Jr., Referee in Probate, in Said District Court, Appellees.
• Court: Iowa Supreme Court

Page 132

181 N.W.2d 132

In the Matter of the ESTATE of Paul A. BRAUCH, Deceased, Appellants, v. Arlan H. BEECK, Clerk of District Court of Plymouth County, Iowa, and John A. Hoffman, Jr., Referee in Probate, in Said District Court, Appellees.

No. 54079.

Supreme Court of Iowa.

Nov. 10, 1970.

E. P. Murray, LeMars, for appellants.

William S. Sturges, County Atty., and John A. Hoffman, Jr., LeMars, for appellees.

MOORE, Chief Justice.

Paul A. Brauch died intestate on November 8, 1966. His estate is being probated in Plymouth County District Court. The filed appraisement shows personal property valued at $136,254.08 and real estate at $106,412.42.

Based on the appraised value of the personal and real property the clerk's settlement fee was taxed at $190 and that of the probate referee at $100. The administrators filed a motion to retax said fees alleging they should be based only on the appraised value of the personal property. They alleged the real estate descends to the heirs instantly upon the death of the deceased, subject only to the rights of the administrator to sell for payment of debts and that the personal property is more than sufficient to pay the debts and cost of administration.

The trial court's order overruling the motion to retax settlement and referee fees includes:

'The value of real estate was included by the legislature in arriving at the total of the estate for purposes of fixing the settlement fee by Chapter 425, Section 1, of the Acts of the 61st General Assembly, approved March 19th, 1965.

'Chapter 326, Section 20, of the Acts of the 60th General Assembly, approved May 16th, 1963, authorized district court judges to fix compensation of referees.'

After obtaining a certificate from the lower court as required by rule 333, Rules of Civil Procedure, because of the small amount involved, administrators have appealed. We affirm.

I. Administrators, as they did in the trial court, rely here on the holding of In re Estate of Pitt, 153 Iowa 269, 133 N.W. 660 (1911). There the court observed that under the then existing statutes and law the real estate passed to the heirs eo instante upon the death of an ancestor. Also the land or its rents could be resorted to for the satisfaction of debts if the personal property was inadequate and then, on suit brought by the administrator to which the heirs had to be made parties. The court further observed an estate inventory of chattels only was required. The court construed the statutory use of 'estate' as meaning personal property only in the absence of a necessity to sell real estate to pay debts. The court held the clerk's settlement fee was to be based on value of the personal property.

The Pitt holding is of little value here due to statutory changes of our probate laws, some of which we point out infra.

II. Subsection 9 of Code section 633.361 requires the personal representative in an estate, within 60 days after his appointment, to file with the district court clerk an inventory including an 'Inventory of all real estate of the decedent in the State of Iowa, giving values and accurate descriptions of each tract'.

Under Code section 633.363 failure of the personal representative to promptly file an inventory the clerk of court is required to report forthwith such failure to the court for an order as may be necessary to enforce making and filing of the inventory.

Code section 633.386 provides: 'Sale, mortgage, pledge, lease or exchange of property--purposes.

'1. Any real or personal property belonging to the decedent, except exempt personal property and the homestead, may be sold, mortgaged, pledged, leased or exchanged by the personal representative for any of the following purposes:

'a. The payment of debts and charges against the estate;

'b. The distribution of the estate or any part thereof;

'c. Any other purpose in the best interests of the estate.

'* * *.'

Chapter 425, section 1, of the Acts of the 61st General Assembly (1965), now section 606.15(29), Code 1966, to which the lower court referred regarding settlement fees for the clerk strikes subsection 29 of section 606.15, Code 1962, and inserts in lieu thereof the following: '29. For all services performed in the settlement of the estate of any decedent, minor, insane person, or other persons laboring under any legal disability, except where actions are brought by the administrator, guardian, trustee, or person acting in a representative capacity or against him, or as may be otherwise provided herein, where the value of the personal property and real estate of such a person falls within the following indicated amounts, the fee...