Gates v. McClenahan

• Decision Date: 13 July 1904
• Citation: 100 N.W. 479,124 Iowa 593
• Parties: GATES ET AL. v. MCCLENAHAN ET AL.
• Court: Iowa Supreme Court

124 Iowa 593

100 N.W. 479

GATES ET AL.

v.MCCLENAHAN ET AL.

Supreme Court of Iowa.

July 13, 1904.

Appeal from District Court, Buchanan County; F. C. Platt, Judge.

The petition in equity alleged that in 1892 David Stevenson died, leaving a will, in which he nominated the defendants as executors of his estate; that the will was duly admitted to probate in New York, and was subsequently admitted as a foreign will and recorded in Buchanan county; that on or about the 10th day of April, 1895, defendants qualified as executors of the estate of deceased in that county; that the will devised and bequeathed to said executors all his property, save certain legacies and the specified articles of personalty, in trust for the uses and purposes stated therein, and empowered them to dispose of any part of the estate at public or private sale on such terms as they might deem advisable; that deceased was owner of 280 acres of land in Buchanan county, and 28 lots in the town of Jesup; that in 1896 defendants, as executors and trustees, brought two actions in the district court of Buchanan county--one to collect rent of said real estate from Catherine Stevenson, and the other against the same defendant and others--putting in issue the title to the land; that these actions were consolidated and tried, and the petitions dismissed, and Catherine Stevenson and others decreed to be owners of the real estate; that an appeal was thereupon taken to this court; that, before anything was done, save perfecting the appeal, the defendants discharged their attorneys who had tried their cause in the district court, and perfected the appeal, and employed the plaintiffs to prepare and file the abstract and arguments; that they rendered services such that the decree of the district court was reversed (McClenahan v. Stevenson, 118 Iowa, 106, 91 N. W. 925), and in February, 1903, a final decree was entered, in which defendants were declared to be owners of said property; that the services so rendered were reasonably worth $4,500, which defendants have failed and refused to pay; that plaintiffs expended in the necessary expenses in conducting said appeal the sum of $125, which has not been repaid; that defendants are residents of New York, and plaintiffs cannot recover their claims of them personally in the courts of this state. And the plaintiffs prayed for judgment for the amounts stated, and that the same be decreed a lien and charge upon the property of the trust estate, and that a writ of attachment issue and be levied thereon. The defendants moved first that the action be transferred to the law side of the calendar, on the ground that no issue triable in equity was stated in the petition, and, subject to the ruling thereon, that it be transferred to the probate docket, and finally that the several paragraphs be stricken, because of not stating a cause of action. Later defendants moved that the attachment be dissolved. Both motions were overruled, and an answer ordered to be filed within 30 days. From these rulings the defendants appeal. Affirmed.Cook & Leach, for appellants.

J. C. Gates, Dunham, Norris & Stiles, and Bronson & Carr, per sese.

LADD, J.

The defendants are the executors of the last will and testament of David Stevenson, Jr., deceased. Property not specifically disposed of was left to them in trust for purposes specified in the will. A part of this was 280 acres of land in Buchanan county, and 28 lots in Jesup. Title thereto was claimed by Catherine Stevenson and others, but was finally held to have passed to defendants. McClenahan v. Stevenson, 118 Iowa, 106, 91 N. W. 925. After that cause had been appealed, the plaintiffs were employed by the defendants to prepare the abstracts and arguments in this court, and they rendered such services. The will of the decedent was admitted to probate in New York, where all the defendants reside. This action was in equity, and the relief prayed is that the value of plaintiffs' services be established as a lien or charge against the trust estate.

Ordinarily one employed in any capacity by an executor or trustee must look to the person employing him for compensation. As he is accountable to his principal only, and not to those owning the estate, he has no lien on the property being administered. Rickel v. Ry., 112 Iowa, 148, 83 N. W. 957;Clark v. Sayre (Iowa) 98 N. W. 484; 2 Perry on Trusts, § 907. But to this, as to nearly every other general rule, there are exceptions. For instance, if a particular person is directed to be employed in a stated capacity by the trust deed, he may claim a lien for his services, or where by the terms of that instrument the trustee is empowered to create a lien, and does so, it may be enforced. 3 Pomeroy, Eq. 1085. There is also another exception which has found approval in several jurisdictions, and it is that, wherever the account of the trustee or executor is in such a condition that he would be entitled to be reimbursed from the funds of the estate, should he pay his creditor, and has become insolvent, or for any reason cannot pay, the creditor may be allowed to take his place, and be paid out of the estate to the same extent. Guerry v. Capers, Bailey, Eq. 159; Clopton v. Gholson, 53 Miss. 466; Norton v. Phelps, 105 U. S. 393, 26 L. Ed. 1072; Coopwood v. Wallace, 12 Ala. 790. See Valley National Bank v. Crosby, 108 Iowa, 651, 79 N. W. 383. In Clopton v. Gholson, supra, the executors were dead, and nonresidence is mentioned in connection with insolvency as obviating the general rule. In Norton v. Phelps, 54 Miss. 467, one of the trustees was dead, and the other a nonresident. In the course of the opinion the court said in reference to one of the trustees: “He is a nonresident of the state of Mississippi, where the trust property is, and where the debt was contracted; and the creditor has the same rights, because of this, as to the trust property, as if Pearce was insolvent. The reason why the insolvency of trustee is an element in the combination of circumstances admitting the creditor to proceed against the trust estate is because of the inability of the courts to coerce the insolvent person to pay his liabilities; and the same considerations apply ordinarily, in case of the nonresidence of the trustee, with regard to his pecuniary condition, for a creditor asking the aid of our courts should not be dismissed because he might pursue a...