In re Carpenter's Estate

• Decision Date: 23 June 1930
• Docket Number: 40045
• Parties: IN RE ESTATE OF AMY M. CARPENTER. v. MIKE O'DAY, Appellant F. W. CURTIS, Executor, et al., Appellees,
• Court: Iowa Supreme Court

231 N.W. 376

210 Iowa 553

IN RE ESTATE OF AMY M. CARPENTER.

F. W. CURTIS, Executor, et al., Appellees, v. MIKE O'DAY, Appellant

No. 40045

Supreme Court of Iowa, Des Moines

June 23, 1930

Appeal from Harrison District Court.--H. J. MANTZ, Judge.

Proceedings in which it is sought to hold Mike O'Day as surety on the bond of one F. W. Curtis, former executor of the estate of Amy M. Carpenter, in an alleged sum which it is claimed that Curtis, as executor, was short in his accounts in said estate. Judgment was rendered against O'Day, and he appeals.--Modified and affirmed.

Modified and affirmed.

Bolter & Murray, for appellant.

M. B Baily and Robertson & Wolfe, for appellees.

ALBERT J. MORLING, C. J., and STEVENS, FAVILLE, and WAGNER, JJ concur.

OPINION

ALBERT, J.

Amy M. Carpenter died testate in June 1924, and one F. W. Curtis was appointed executor of her estate. It is claimed that Curtis, as such executor, filed a bond with the proper authorities, and entered upon the discharge of his duties. He died December 7, 1925, and Gertrude M. Curtis, his wife, was appointed executor of his estate, and shortly thereafter, Harold L. Haight was appointed executor, with will annexed, of the estate of Amy M. Carpenter.

Gertrude M. Curtis filed a report in her husband's estate, to which objections were filed, in which it was claimed that there was a sum slightly over $ 9,000 in the estate of Amy M. Carpenter for which Curtis had not accounted. In a proceeding had on these objections, it was found that $ 9,176.39 had been collected by Curtis, assets of the estate of Amy M. Carpenter, for which he had never accounted. The date of this finding by the court was October 26, 1926. It appears that the bond given by Curtis was signed by Mike O'Day and W. H. Keairnes, as sureties. In the above proceedings, the court further ordered that Haight, as administrator of the Carpenter estate, was empowered to file a claim in the Keairnes estate for that sum, plus 6 per cent interest from April 1, 1925, and to prosecute the suit now pending in the district court against the bondsmen. No such claim was filed.

W. H. Keairnes died September 22, 1924, and his widow was appointed administrator of his estate. She died December 24, 1924, and Henry and Leo Keairnes were appointed administrators de bonis non of the estate of W. H. Keairnes. This latter estate was duly settled and closed on October 30, 1926. It was solvent, and ample to pay more than any claim that the estate of Amy M. Carpenter, deceased, might have against it.

On January 8, 1927, the district court made an order for Haight, as administrator of the Carpenter estate, fixing the time, place, and manner of service upon the bondsmen of F. W. Curtis, as executor, and fixing the amount due and unpaid from Curtis as executor upon the final report of Gertrude M. Curtis; and the order provided that five days' written notice be served upon Mike O'Day and the legal representative of William Keairnes, deceased, to appear and show why judgment should not be rendered against them as sureties on said bond. The Keairneses appeared to this application, and after trial, the application or petition of Haight, as administrator of the Carpenter estate, was dismissed, so far as the Keairneses were concerned.

On August 27, 1927, Mike O'Day appeared, and filed a motion attacking the petition or application of Haight, administrator, in which it was sought to hold O'Day as surety for the default of Curtis. This motion was overruled. On April 5, 1928, O'Day filed an alleged showing why judgment should not be rendered against him, in which he admits that he signed the bond of E. W. Curtis, as executor of the estate of Amy M. Carpenter, deceased, as one of the sureties thereon, and that Keairnes signed said bond, as the other surety, and showed the court that no judgment should be rendered against him for the following reasons: That he has been released by reason of certain promises and laches made by the heirs of Amy M. Carpenter, deceased, through their representative and administrator, Harold L. Haight, through his attorney, in connection with the claim against Mike O'Day, if any, by reason of his having signed said bond for the said F. W. Curtis.

He further sets up the death of his cosurety, Keairnes, and the settlement and closing of that estate, and alleges that the attorney for the estate of Amy M. Carpenter, deceased, told him at different times that he (the attorney) did not expect to make claim against him, or to recover from him or the estate of William H. Keairnes, deceased, anything for or on account of his (O'Day's) having signed said bond, and never made any attempt to collect from him (O'Day) anything on said bond until long after the Keairnes estate was settled and disposed of. He then sets out the proceedings of Haight, administrator, against the Keairnes heirs, both on that estate and in permitting the claim to be filed on this bond, and the action of the court in objecting to the application and refusing to open the Keairnes estate. He further alleges that, by reason of the failure of Haight, the administrator, to file a claim against the Keairnes estate, he has been deprived of his right to recover from said estate anything for and on account of the liability of said estate on said bond, and that, by reason of laches on the part of the administrator of the estate of Amy M. Carpenter and her attorneys, they are estopped from claiming anything from this respondent; that, because the administrator of the estate of Carpenter released the cosurety on the bond, or permitted his release, O'Day is released from liability. He further pleads that Curtis, as executor, deposited money of the Carpenter estate in the Dunlap State Bank, and that there was and is to his credit in said bank money that the present administrator of this estate is seeking to recover against the bondsmen of Curtis; that, at the time the money was so deposited by Curtis, said bank was solvent, and Curtis deposited the same believing, as an ordinarily prudent man, that the bank was solvent; that, if said money was lost, Curtis, as executor, was not liable, and that his bondsmen are not liable therefor; that, long after the deposit of said money in said bank, it was closed, and went into the hands of a receiver; and that it was subsequently reorganized, as the Dunlap Savings Bank, and took over enough of the assets of the Dunlap State Bank so that they were enabled to pay half of the deposits, as shown by the books of said bank; that there is now on deposit in the Dunlap Savings Bank one half of the money now claimed by the administrator of the Carpenter estate; that there are securities in the hands of the trustees of the Dunlap State Bank out of which may be made at least some of the remaining one half of the money belonging to the depositors in the bank; and that Haight, as administrator, has made no effort to collect any of said money. Wherefore, appellant asks that the application of Haight, as administrator of the Carpenter estate, be denied.

The administrator of the Carpenter estate moves to strike each paragraph and sentence and all of the showing made by the defendant, O'Day, as to why judgment should not be rendered against him in the above matter, after the word "reasons," in the sixth line, on the following grounds:

1. O'Day admits that he executed the bond, a copy of which is attached to said showing and made a part thereof.

2. There is no denial in said showing that this court made the order referred to in said application of the administrator herein, or plea or claim by said Mike O'Day that said order was procured by fraud or other mistake.

3. That the said bond which respondent, Mike O'Day, admits he executed, is the joint and several obligation of said William H. Keairnes and said Mike O'Day, and therefore the release of said Keairnes or his estate, if any, is no defense to said application of the administrator of the estate of Amy M. Carpenter, deceased, as against the respondent.

4. That said order and decree of the court, rendered by W. C. Ratcliff, judge, referred to in said showing, does not constitute any defense, bar, or estoppel to the right of the said administrator to have judgment against Mike O'Day, as demanded in his said application herein, for the reasons: (a) The liability of said Mike O'Day has been determined and adjudicated by the said order of this court on the 19th day of October, 1926, a copy of which is attached to said showing; (b) the said bond is joint and several; and (c) the said decree rendered by the court in the case tried before Judge Ratcliff was without jurisdiction of the subject-matter and void, because no claim was filed against said estate of William H. Keairnes, deceased, and it was not necessary to file such claim against said estate, and the court had no jurisdiction, therefore, of the subject-matter involved herein in the proceedings upon the application of this administrator to file said claim against said estate of William H. Keairnes, deceased, as shown by the decree of this court rendered on the second day of August, 1927, signed by Judge W. C. Ratcliff, and attached to said showing.

5. And said Mike O'Day was not a party to...