In re Acken's Estate

• Decision Date: 19 November 1909
• Citation: 144 Iowa 519,123 N.W. 187
• Parties: IN RE ACKEN'S ESTATE.
• Court: Iowa Supreme Court

144 Iowa 519

123 N.W. 187

IN RE ACKEN'S ESTATE.

Supreme Court of Iowa.

Nov. 19, 1909.

Appeal from District Court, Bremer County; J. J. Clark and J. F. Clyde, Judges.

From an order appointing an administrator of the estate of Mary Ann Acken, deceased, and an order for the examination of one I. Belle Rust, the said Rust appeals. Affirmed.Sager & Sweet, for appellant.

Dawson & Wehrmacher, for appellees the administrator and Cleon W. Acken.

DEEMER, J.

Mary Ann Acken, a resident of Bremer county, died intestate on or about May 12, 1908. Thereafter, and on August 1, 1908, Cleon W. Acken, a son of the deceased, filed in the office of the clerk of the Bremer county district court a petition for the appointment of an administrator. In this petition Acken asked for the appointment of Frank A. Lee. Lee filed a bond with proper sureties approved by the clerk, and letters of administration immediately issued to him, signed by the clerk of the district court. He immediately caused notice of his appointment to be published according to law, and filed a list of the heirs and a description of the real estate. No inventory of the personal property was filed, nor had any claims been filed, when the court made the orders in the case hereinafter referred to. The statement as to the heirs discloses that Cleon W. Acken, a son, and I. B. Rust, a daughter, are the sole and only heirs of the deceased, and that they are both of full age. Thereafter, and on August 25, 1908, I. Belle Rust, one of the heirs, filed a motion to transfer the application for the appointment to the district court, and accompanied this application with objections to the appointment of an administrator, claiming that deceased left no property, and had no debts at the time of her death. The administrator objected to this application, claiming that deceased left property to be administered upon, which property was in the possession of I. Belle Rust. Other objections were made which we shall hereafter notice. The entire matter was transferred to the district court and heard at regular session thereof, resulting in an order denying the motion to set aside the appointment of the administrator and confirming the appointment. I. Belle Rust appealed from this order; her notice having been served on November 9, 1908.

On November 7th of the same year the administrator filed a petition for an order to examine I. Belle Rust on the theory that she had property belonging to the deceased which she had taken wrongfully and without authority. On the same day an order was entered by the district court granting the petition and fixing a time for the examination of Mrs. Rust. The time so fixed was November 9th. When the time arrived, Mrs. Rust filed a resistance to the order and a showing as to why the examination should not be had. Among other objections was the claim that, as an appeal had been taken from the previous order confirming the appointment of the administrator and supersedeas bond filed, the trial court was without jurisdiction to proceed any further. These matters were submitted to the court, and the following order made thereon: “It is ordered that the application and motion in resistance to order for examination is overruled and denied, and said I. Belle Rust is ordered to reappear and submit to such examination on the 19th day of November, 1908, at 2 o'clock, to all of which ruling and order she excepts.” Seasonable appeal was taken from this order. The case comes to us on these two appeals, and the questions involved are largely of law. Appellant contends that no administrator should have been appointed, for the reason that the deceased had no debts and no property to be administered upon; that, if there be any right to any property in her hands, it was one accruing to Cleon W. Acken as heir, and not to the personal representative of the deceased. She further contends that, after the first appeal, the court had no further jurisdiction of the matter, and that the order for examination was without authority and void.

These several questions necessitate an examination of the facts disclosed by the record, and, to a proper understanding of the points involved, a statement of the exact issues as presented by the various papers filed. The application for the appointment of the administrator recited the death of the intestate; her residence in Bremer county at the time of her death; that she died intestate, leaving the appellee, whose home is in Nebraska, and Mrs. Rust, as her sole and only heirs. It also recites that deceased was seised of certain real estate in Bremer county (describing it). It then proceeds as follows: “That your petitioner believes that said Mary Ann Acken died seised of a considerable amount of personal property, including moneys, notes, and other evidences of indebtedness and securities, the amounts and description thereof your petitioner is unable to state, because the same is under the control and custody of the said Mrs. I. B. Rust. The said Mrs. I. B. Rust makes some pretended and false claim or title therein and possession thereof, as well as the real estate hereinbefore described, by reason of a false, fraudulent, and pretended written conveyance signed and executed by said Mrs. I. B. Rust, claiming to act as the agent and attorney in fact for the said deceased, Mary Ann Acken, conveying said real estate and personal property to Mrs. I. B. Rust, which conveyances are wholly void and of no force or effect whatever. That your petitioner further alleges that, on account of his present nonresidence, he is advised that he may not be entitled to act as administrator of the estate of his mother, Mary Ann Acken. He therefore asks that Frank A. Lee be duly appointed as the administrator of the estate of Mary Ann Acken, deceased, believing that the said Frank A. Lee, who is a resident of Waverly, Iowa, to be a capable, competent, and worthy person for such appointment.”

In the application for removal of the proceedings to the district court Mrs. Rust made the following objections to the appointment of the administrator:

“(3) That the said Cleon W. Acken does not state in said application that there is any personal property belonging to the alleged estate of the said Mary Ann Acken. He simply alleges a belief.

(4) That in said application the said Cleon W. Acken seeks to vitiate, set aside, and hold for naught a certain power of attorney and bill of sale, and the clerk of said court has no authority or power under said application to pass upon the validity of said power of attorney or bill of sale.

(5) That there is no property, personal, real, or mixed, belonging to the alleged estate of Mary Ann Acken.

(6) That, until a certain power of attorney, bill of sale, and warranty deed have been passed upon, set aside, and held for naught by a court of competent jurisdiction, there is no property belonging to the alleged estate of Mary Ann Acken, deceased.

(7) That prima facie there is no property belonging to the alleged estate of Mary Ann Acken, deceased.”

In his objections to Mrs. Rust's application the administrator filed a statement, which contained these, among other, allegations: “That your administrator states and represents to the court that there is now, and was at the time of his appointment, personal property belonging to and owned by said Mary Ann Acken, deceased, which personal property is now in the possession of the said I. Belle Rust, in Bremer county, Iowa, and that if his appointment is confirmed by the court, he will proceed at once, under the direction of the court, to collect and recover said personal property; that the power of attorney and bill of sale mentioned and referred to in the application made by one Cleon Acken for his appointment as administrator is null and void, and has no legal effect whatsoever, all of which appears upon the face of said instrument.”

He also filed the following as an amendment: “That he attaches hereto a true and correct copy of the pretended bill of sale heretofore referred to in his original objection, and makes the same a part of his objections heretofore filed, marked ‘Exhibit A’; and your administrator further avers that the said Mary Ann Acken, deceased, was at the time of her decease and for many years prior thereto a resident of Bremer county, Iowa, and was at the time of her decease the owner of a large amount of real and personal property, deriving therefrom large profits as interest and rentals therefor, that the pretended deeds and bill of sale made by the said I. B. Rust as the pretended attorney in fact of the said Mary Ann Acken are void and against public policy, and that the rights and interests of the creditors and heirs of the said Mary Ann Acken, deceased, is such a right and interest in property that your administrator has the right to require the said I. B. Rust to submit to an examination and disclosure, which confers jurisdiction upon this court to continue the administration of said estate, to the end that the personal property of the said Mary Ann Acken, deceased, may be collected, preserved, and distributed as required by law.”

Exhibit A, attached to the amendment of objection to motion, is as follows: “Know all men by these presents that I, Mary Ann Acken, a widow, of Bremer county, state of Iowa, in consideration of the sum of one hundred and no-100ths dollars, in hand paid by I. Belle Rust, of Bremer county, state of Iowa, do hereby sell and convey unto the said I. Belle Rust, and to her heirs and assigns the following described goods and chattels, to wit: All mortgages, moneys, credits, certificates of deposit, etc., in fact, all personal property of every name and nature now owned by me and in my possession or that may accrue and become mine prior to my death. To have and to hold the same forever, and I the said party of the first part will forever warrant and defend the said property against the lawful claims of all persons whatsoever. Signed the...