Haddock v. Meagher
| Decision Date | 19 June 1917 |
| Docket Number | No. 31353.,31353. |
| Citation | 163 N.W. 417,180 Iowa 264 |
| Parties | HADDOCK v. MEAGHER ET AL. IN RE MEAGHER'S ESTATE ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Taylor County; Thomas L. Maxwell, Judge.
Action to have a will construed and another against a trustee for money in his hands, which was alleged to belong to plaintiff's decedent. The will was construed, the plaintiff's petition dismissed, and the moneys, after payment of a legacy, ordered to be distributed among certain devisees of testatrix. The plaintiff appeals. Affirmed.William M. Jackson, of Bedford, for appellant.
James R. Locke, of Bedford, for appellees.
Bridget J. Meagher died testate May 11, 1904. Her will was duly admitted to probate and an administrator with it annexed duly appointed. After devising certain lots to her daughter, she directed that the executor should manage the remaining estate, saying:
Nine children survived her, the youngest being Veronica Meagher, who attained her majority August 14, 1911. This then was the day the property was ready for distribution under the will, and the main issue is whether William F. Meagher died before or after that time. Shortly after that, the real estate left by testatrix was partitioned, and one-ninth of the proceeds turned over to M. R. Meagher to be held for William F. Meagher, whose whereabouts were then unknown. This amounted to $3,765 December 29, 1914. In that year, G. B. Haddock, on petition of Maud Meagher, wife of William, was appointed administrator of his estate, and, as the trustee did not pay over the funds in his hands on demand, Haddock, after qualifying, began this suit against said trustee and his bondsman. Subsequently suit to construe the will was begun by Haddock as administrator, joined later by B. F. Ginn as guardian of the said wife of the absentee, William F. Meagher, and his only daughter, Iolene Meagher. These two actions were consolidated. Several matters may be disposed of before passing on the main issue.
[1] I. Several witnesses with respect to the facts as recited above expressed the opinion that the absentee died soon after last heard of. These were not the subject of expert testimony, the witnesses merely drawing their inferences from the evidence precisely as the court must have done. It amounted to submitting the controlling issue to persons having no special qualifications to decide--precisely what the court must have passed on in deciding the cause. As holding this was not permissible, see Erwin v. Fillenwarth, 160 Iowa, 210, 137 N. W. 502;State v. Bennett, 143 Iowa, 214, 121 N. W. 1021;State v. McGruder, 125 Iowa, 741, 101 N. W. 646.
[2] II. A petition by Maud Meagher, wife of the absentee, was filed in September, 1914, and the same month G. B. Haddock was appointed administrator of his estate in pursuance of section 3307 of the Code Supp. (1913). The order of appointment recites that William F. Meagher died in 1914. This record is said to be some evidence of his death at the time recited. But the proceeding was ex parte, and whether William was dead is not in issue, and therefore neither the issue as to whether he was dead nor when he died was involved in the appointment of the administrator. Werner v. Fraternal Bankers' Reserve Society, 172 Iowa, 504, 154 N. W. 777. The finding then cannot be regarded an adjudication and is without weight as evidence.
[3] III. Suit to partition the real estate of testatrix, other than that left to her daughter Mary, was begun in August, 1911, by M. R. Meagher against the other heirs; service being had on Wm. F. Meagher by publication. Decree of partition was entered in September following. That decree expressly found that, if Wm. F. Meagher were living, he and each of the other devisees were entitled to one-ninth of the estate, and that, if he were then dead, the other devisees would each be entitled to one-eighth of said estate. The referee appointed by this decree sold the land and made final distribution of the proceeds thereof May 9, 1912. Prior thereto, on April 24, 1912, on motion of the administrator, M. R. Meagher had been trustee to receive funds belonging to the absentee, and he gave the bond, as such trustee, sued on. Several days later the administrator was ordered to pay over to the clerk of the district court the sum of $150 which had been garnished as the property of the absentee to be held to abide further orders of the court, and in said order the court expressly disclaimed deciding whether said absentee was dead or alive. The referee paid over a ninth part of the proceeds of the real estate to this trustee, and it is contended by appellant that in some way this transferred the constructive possession thereof to the absentee and constituted an adjudication that he was living and entitled thereto. There are two answers to this contention: (1) That the court did not undertake to determine to whom the ninth share belonged in the partition proceedings, but treated the absentee's interest as contingent, reserving the same for subsequent determination under section 4243 of the Code, which provides that:
“Persons having apparent or contingent interests in such property may be made parties to the proceedings, and the proceeds of the property so situated, or the property itself in case of partition, shall be subject to the order of the court until the right becomes fully vested.”
And (2) the order appointing the trustee does not purport to pass on the ownership of the funds to be held by him, and this might not be done on an ex parte application of the referee for such appointment. The real parties in interest were not parties to that proceeding, and therefore not bound thereby. Ivers, Adm'r, v. Ivers, 61 Iowa, 772, 17 N. W. 149;Barto v. Harrison, 138 Iowa, 413, at page 417, 116 N. W. 317;Brown v. Lambe, 119 Iowa, 404, at page 405, 93 N. W. 486;In re Estate of Morgan, 125 Iowa, 247, 101 N. W. 127;Criley v. Cassel, 144 Iowa, 685, at page 687, 123 N. W. 348;Butler v. Secrist, 92 Neb. 506, 138 N. W. 749, 750. There was no adjudication as to whom the funds in the hands of the trustee belonged.
[4][5][6][7] IV. When did William F. Meagher die? William F. Meagher left Lenox in 1902. He had been incorrigible in school and had become addicted to the excessive use of intoxicating liquors, indulging in periodical sprees during which he was violent and abused his wife. He had lived apart from her for several months. They had separated. His habits had not improved prior to his departure for the West. The evidence shows, however, that his relations with his mother and brothers and sisters were agreeable, and that he entertained genuine affection for his mother, his brother Thomas, and sister Veronica. He kept up a correspondence with the family, writing once in three or four weeks until the latter part of May or fore part of June, 1904, in the meantime being in Colorado, Nevada, and California. A telegram was received from him shortly before his mother's death, stating that he was very ill in a hospital at Reno, Nev., and, after being notified of that event, he wrote--and this was the last letter ever received from him--concerning the death of his mother and that if he got to feeling better he planned to go into the mountains. This was not later than the fore part of June, 1904....
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