In re Bagnola's Estate
| Decision Date | 19 October 1915 |
| Docket Number | 30121 |
| Citation | 154 N.W. 461,178 Iowa 757 |
| Parties | IN RE ESTATE OF FRANK BAGNOLA, Deceased. v. URBANO DI CORPO, Appellee A. CONTE, Appellant, |
| Court | Iowa Supreme Court |
REHEARING DENIED, WEDNESDAY, DECEMBER 13, 1916.
Appeal from Polk District Court.--LAWRENCE DEGRAFF, Judge.
THIS is an appeal from the removal of appellant Conte, as administrator of the estate of Bagnola, and appointing appellee as administrator in his stead, and from a refusal to vacate said order, and to reinstate appellant as administrator.
Affirmed.
Royal & Royal and Hyde & Westbrook, for appellant.
Carr Carr & Evans, for appellee.
Frank Bagnola died intestate in May, 1913, and at the time of his death was a citizen of the royal Italian government. The appellant Conte was then, and still is, the duly appointed and accredited consular agent of said government, for and in a district embracing the state of Iowa. On July 5, 1913, Conte was duly appointed administrator of the estate of Bagnola, and he duly qualified and proceeded to act. He was, at the time of his appointment and still is, a nonresident of this state. An application to remove him as administrator was sustained, and the appellee, Di Corpo, appointed in his stead.
No citation was served upon Conte. It appears, however, that Messrs. Clark & Claussen, duly licensed attorneys, at one time acted as attorneys for Conte, and we may assume that it was in the conduct of administrator's business on part of Conte as consular agent. In some of this work, Mr. Wilson, another duly licensed practitioner, has acted with Clark & Claussen. We may concede that the petition filed by Conte to be appointed administrator was signed and filed by Clark & Claussen and Mr. Wilson, as attorneys for Conte, and also that, while Wilson never had any express authorization to accept service upon or waive any notice, he had written authority from Clark & Claussen to act for them in all matters arising in the district court of Polk County. He admitted service of a citation requiring Conte to appear to the petition to remove, and forwarded the same to Clark & Claussen. It may further be conceded that both Clark & Claussen and Wilson had actual notice that the petition to remove had been filed; knew that a hearing thereupon was set; and, though the order of removal recites neither the appearance of parties or counsel, that these attorneys took part in such hearing--a concession which obviates the need of considering either the argument that there was an appearance because the record recites the taking of an exception, or the effect upon that argument of Hamill v. Schlitz Brewing Co., 165 Iowa 266, at 288, 289, wherein, though the opinion does not show it, an exception was taken to an entry correcting an earlier order, and alleged want of notice and appearance are held to make the last entry void. It appears, also, that certain fees and attorney allowances provided for in the order of removal were paid to Wilson, and that some of these he paid over to Clark & Claussen. Conte made no appearance, and there is nothing in the record to indicate, if that be material, that he personally had any notice which was, if there can be any such, the equivalent of the service of citation. There was, therefore, no jurisdiction conferred to remove Conte, unless the service made on Wilson was service on Conte, or said participation in hearing made notice needless. This involves the effect of the relation which Wilson and Clark & Claussen sustained to Conte. We are of opinion that being retained to apply for administration, and to aid in the conduct of administration business, after appointment is made, gives no authority to waive service of notice of, or appear to, a petition to remove the administrator. The retainer described is, first, to obtain administration, and, next, to aid the appointee in administering. A petition to remove is an indictment of the administrator on the civil side, and the order of removal terminates the administration and all need of or right to aid in the work of administration under the one-time administrator. Authority to help live is not authority to consent to death. Service of citation upon Conte himself was, in the circumstances at bar, indispensable. Haddick v. District Court, 160 Iowa 487, 141 N.W. 925; Schwilke's Appeal, 100 Pa. 628; State v. Anderson, 84 Tenn. 321, at 329; Gasque v. Moody, 20 Miss. 153; Horn v. White, 127 Ill.App. 222, at 227; Munroe v. People, 102 Ill. 406; Hanifan v. Needles, 108 Ill. 403; Briggs v. Probate Court (R. I.), 50 A. 335. We conclude that the district court removed Conte without having acquired jurisdiction of his person.
II. The record is quite confused as to just what was done in the way of a hearing upon the petition to remove. A careful study has satisfied us that the petition to remove was treated as being of some evidentiary value, and that, for the rest, there was discussion by the court and counsel, and statements by counsel, which the court treated as a species of professional statement. It is fairly clear that no witnesses were sworn, or other testimony adduced under sanction of an oath. The petition itself is not evidence. Wilson v. Hoss, 22 Tenn. 142; Gregg v. Wilson, 24 Ind. 227. And we think that the statute providing for the petition (Code Section 3417) contemplates that that paper is in the nature of a pleading merely. In our opinion, the removal should not have been ordered upon such a hearing. Removal requires "cause shown after due hearing." 18 Cyc. 157 (VIII).
III. The application to remove, if treated as being evidence, asserts, in effect, that the sole heir of the decedent was his wife, who has been at all times a resident of Italy; that decedent left no property except a claim against a railroad company for injuries that caused his death; that a settlement has been agreed upon, on which the railroad was to pay $ 1,200 in full of the claims of the widow, and sole heir, out of which she should receive net $ 900, and that, of the remaining $ 300, $ 100 should be paid to an attorney in Italy, representing her, and $ 200 to the petitioner applying for removal and asking to be substituted; that Conte was appointed while this settlement was under negotiation, without the knowledge of the widow or her attorney; that he is preparing to sue the railroad company, and that such action can have no other result than to make expenses and charges against the estate, and diminish what the widow will receive; that decedent was 50 years old at the time he was injured, and there is considerable doubt as to the liability of the railroad; that in the opinion of applicant the settlement agreed upon is fair and equitable; that he has advised Conte and his attorneys of the situation, and Conte will not consent that said settlement be carried out; and that Conte is a resident of Milwaukee, Wisconsin. Had the court had jurisdiction, and were the petition to remove, evidence, what the petition declares is, we think, not sufficient ground for removal. Conte was a nonresident of Iowa when first appointed. We held, in Foley v. Cudahy Packing Co., 119 Iowa 246, 93 N.W. 284, that, under Section 3297 of the Code, a nonresident may be legally appointed an administrator in this state. While we say, in Chicago, B. & Q. R. Co. v. Gould, 64 Iowa 343, 20 N.W. 464, that, ordinarily, a nonresident should not be appointed, we declare that nonresidence alone does not disqualify. It is thoroughly well settled that, under our treaty obligations, the consul has the initial right to administer upon the property of the subjects of his country. It is clear, then, that Conte's being a nonresident did not justify his removal.
In effect, all that remains is that the administrator did not approve of the settlement above described, and that, in the opinion of the applicant, the same was a fair settlement. If the statement of such opinion by way of pleading be conceded to be evidence, surely, that the applicant who is to get a fee, if sustained, had one opinion as to the quality of the settlement, and the administrator another, is no ground for removal. For aught that appears, he may have been opposed to it because he thought that, under the circumstances, a $ 300 deduction, of which $ 200 went to the applicant, and $ 100 to an Italian attorney, was too large a part of a $ 1,200 estate.
In 18 Cyc. 165 (Note), it is said that "errors of judgment not amounting to malfeasance are not sufficient cause for the removal of an administrator."
In In re Estate of Fisher, 128 Iowa 626, 104 N.W. 1023, where the estate owed no debts, we held it insufficient ground for removal that the administrator declined to sell railroad stocks which were claimed to be hazardous property, and to be fluctuating in value.
It is said in 18 Cyc. 165 (Note), that all the administrator need exhibit is the ordinary diligence and caution of ordinarily prudent men in the conduct of their own business.
It is bad faith that is interdicted. 18 Cyc. 233; In re Estate of Ring, 132 Iowa 216, at 222, 109 N.W. 710; In re Estate of Fisher, 128 Iowa 626, at 630, 104 N.W. 1023; McFayden v. Council, 81 N.C. 195.
It is thoroughly well settled that where the statute prescribes grounds for removal, none others are available. And the statute does not make any of the matters charged in the petition...
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