In re Beghtel's Estate
| Decision Date | 13 November 1945 |
| Docket Number | 46802. |
| Citation | 20 N.W.2d 421,236 Iowa 953 |
| Parties | In re BEGHTEL'S ESTATE. BEGHTEL v. TIMMONS. |
| Court | Iowa Supreme Court |
Ted Hartung and F. G. Ryan, both of Des Moines, for appellant.
Mills & Diltz, of Des Moines, for appellee.
Margaret Beghtel, a resident of Polk County, Iowa, died intestate on March 25, 1945, leaving a spouse, Frank Beghtel, and a daughter by a former marriage, Betty Lou Ansberry, nine years of age, as her next of kin. Within the twenty day period after her burial the surviving spouse failed to make the application for administration allowed to him exclusively during that period, under sections 11883 and 11884, Code of 1939.
On April 23 1945, said Betty Lou Ansberry, next of kin, by her grandmother, acting as her next friend, petitioned the court 'that letters of administration may be granted unto this petitioner or any other appropriate person, of the estate of said Margaret Beghtel deceased.' On the same date, Judge Murrow, one of the judges of the district court in and for Polk County, Iowa appointed an administrator of his own selection, Fred E. Timmons, as administrator of said estate.
On May 4, 1945, Frank Beghtel, the surviving spouse, petitioned the court that he be appointed administrator of the same estate as 'surviving spouse and creditor, being the step-father of and having custody of Betty Lou Ansberry, a minor daughter.' This petition was presented to Judge Moore of the same court. Judge Moore made the appointment as prayed, but was not then advised of the prior appointment on April 23, 1945, or that the administrator then appointed had qualified and was then acting. On May 7, 1945, Flossie Marie Hogelin, a grandmother of Betty Lou Ansberry, was appointed guardian of said minor. On May 9, 1945, Frank Beghtel, as administrator, and the guardian, together with two creditors joined in an application to set aside the appointment of Timmons. The application recited the relationships to the minor; that Frank Beghtel was her legal custodian and step-father and liable for her support. Said application did not question the right of the court to make the appointment sought to be set aside. No question of jurisdiction was raised. Timmons filed a resistance to the application and following a hearing, the court filed and entered its order denying the application to set aside the appointment of Timmons and confirming his appointment. Beghtel alone appealed, apparently in his capacity as creditor.
I. The trial court, in ruling upon the application for the removal of Timmons, stated that no objection was made to the administrator (Timmons), so appointed, upon the ground of fitness or otherwise, and that the sole question for decision of the court was as to the legal right of the minor child of the deceased, as next of kin, to petition for appointment of an administratory by her next friend.
The sole and only question involved is as stated by the trial court: Can the minor child, next of kin to one deceased, through a next friend apply for the appointment of an administrator of the estate of the one deceased? The trial court held that such an application was proper and confirmed the appointment. We hold that the trial court did not err in so holding.
II. The administration of estates is the result of statutory enactment. Prior to the code revision session of 1924, the order of appointment was as follows (Section 3297, Code of 1897):
'In other cases where an executor is not appointed by will, administration shall be granted:
'1. To the husband or wife of the deceased;
'2. To his next of kin;
'3. To his creditors;
It was further enacted that to each of said classes, in succession, a period of twenty days, commencing with the burial of deceased, is allowed, within which to apply for administration upon the estate.
The code revision session (extra session 40th G.A.) made a very material change in the statute regarding the appointment of an administrator. This legislation now appears in section 11883, Code of 1939, and is as follows:
'Administration granted. In other cases, where an executor is not appointed by will, administration shall be granted to any suitable person or persons on the request and application of:
'1. The surviving spouse.
'2. The next of kin.
'3. Creditors.
The section allowing to each of the named classes in succession a period of twenty days commencing with the date of burial of deceased, in which to apply for administration, remains unchanged. Sec. 11884, Code of 1939.
Under the statute as changed, an applicant for administration need not seek the appointment for himself, but may apply to the court within the stated period for the appointment of any suitable person. As the statute now stands it is expressly provided that administration may be granted to any suitable person and that such appointment may be so granted on the request and application of one of the designated class. In re Estate of Rugh, 211 Iowa 722, 234 N.W. 278, 279. In the cited case there was a conflict as to who should serve as administrator. The applicants who were held entitled to the appointment were nonresident aliens, one of whom was a minor. It was there claimed that such applicants, being aliens, were disqualified to act. In rejecting this claim, this court called attention to the former statute which in terms provided that that applicant, if within the proper class and during the period provided, was entitled to the appointment. In reviewing some of our holdings on that matter the court said: 'Even under the old statute (before code revision) we tacitly recognized the validity of the appointment of a third party where the application for such appointment was made by one of the designated classes.' In that case where one of the applicants was a nonresident minor, and an alien, the court passed upon the question only inferentially, although the appellant made the minority of such applicant a ground of resistance to such application. We call attention to this case (In re Rugh's estate) to emphasize the material change made in the old statute by the 40th G.A. (code revision session).
No one questions the fact that Betty Lou Ansberry was the next of kin of deceased, or that the application by her grandmother as her next friend was within the period allowed the next of kin to petition for the appointment of an administrator. During that period as next of kin her right was exclusive. The privilege of having administration was a valuable and substantial right which belonged to her as next of kin. Her age (nine years) is urged as a barrier to her making an application for administration or to receive such appointment. It may be conceded that she would be incompetent to act as administrator, but does it necessarily follow that a next friend cannot make the application in her behalf? At the time the application was filed asking for the appointment of an administrator, and when Fred E. Timmons was appointed, said minor had no guardian. No guardian was appointed for her until May 7, 1945, or sixteen days after Timmons had been appointed.
Rule 12 of our rules of civil procedure provides that a minor may bring an action by a guardian, if he has one, otherwise he may sue by a next friend. The court does not appoint the next friend. A next friend is not a party in interest. The next friend is to aid one under legal disabilities to assert rights against another. Smith v. Dawley, 92 Iowa 312, 60 N.W. 625; Douglass v. Agne, 125 Iowa 67, 99 N.W. 550. It can hardly be denied that the right to an appointment as an administrator is something of value. Also it is a matter in which the next of kin is interested.
The rule above mentioned states that a minor may 'sue by [his] next friend.' It would seem that under said rule the suing and the bringing of an action are synonymous. It would seem that an application for the appointment is a special proceeding. In re Johnson, 87 Iowa 130, 54 N.W. 69. Code, section 10938 provides: 'Every proceeding in court is an action, and is civil, special, or criminal.' Thus it would seem to follow that a petition (or application) could be filed by the next friend in the event there was no guardian. While the next friend is not appointed by the court, yet when action is brought for and on behalf of a minor the next friend is under the control of the court. Thurston v. Cavenor, 8 Iowa 155, 8 Clarke 155; Cavender v. Smith's Heirs, 5 Iowa 157-192.
While we have held that some of the rules of civil procedure do not apply to...
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...supra note 12. FN16. In re Interest of D.A., 239 Neb. 264, 475 N.W.2d 511 (1991). 17. See, Miller, supra note 10; In re Estate of Beghtel, 236 Iowa 953, 20 N.W.2d 421 (1945); Wager v. Wagoner, 53 Neb. 511, 73 N.W. 937 (1898). FN18. Dye, supra note 10. 19. See Dafoe v. Dafoe, 160 Neb. 145, 6......