In re Ellenberger's Estate
| Citation | 153 N.W. 1036,171 Iowa 225 |
| Decision Date | 21 September 1915 |
| Docket Number | 30024 |
| Parties | IN RE ESTATE OF WILLIAM ELLENBERGER, SR., Deceased |
| Court | United States State Supreme Court of Iowa |
Appeal from Johnson District Court.--HON. R. P. HOWELL, Judge.
ON the 25th day of September, 1909, William Ellenberger, Sr., made what is alleged to be his last will. He died some time in April, 1914. The probating of this will was set to be heard on April 30, 1914. Before probate was granted, the three daughters of testator, now appellees, filed notice of contest, and thereupon probating was suspended, and the contest has not yet been tried. In this situation, one Korab who is not a party in interest, was, on the application of the daughters, and over the objections of the appellants appointed special administrator. From this the two sons chief beneficiaries in the will, appeal.
Affirmed.
Wade, Dutcher & Davis, for appellees.
Ney & Bradley, for appellants.
I.
One attorney for appellees verified the application for a special administrator, and was thereupon subjected to cross-examination. Appellants assert that this cross-examination reveals that said attorney, and his clients, are making application in bad faith, and, for objects not contemplated by the statute, permitting the appointment of special administrator, with intent to harass appellants, who are the chief owners of the estate, and with purpose to exploit that estate by gathering evidence for use in contesting the will and other instruments disposing of the estate, at great expense to such estate. They insist that the administrator who was appointed at the instance of appellees is one "whose duty it is to be active and obey the suggestions of the heirs and his attorney." The ultimate argument is that the issue we have to determine is whether a special administrator should be appointed for the purpose of exploiting the estate and finding evidence pending and for use upon said contest. This contention does not require us to pass upon whether a fair construction has been put upon the testimony given by said attorney upon said cross-examination.
We think it sufficient reply that the court appointed an administrator who is by the record shown to be a man of good standing and disinterested; that the presumption must be indulged he will act faithfully within the limits set by the law; that he will be at all times under full control of the court; and that, if expense be a material consideration, that of resisting the appointment, and of this appeal, is greater than the expense of special administration should be, or under supervision of the court is likely to be. It may be added, in passing, (1) that the cross-examination should be used for all that it establishes, and if it tends to show that the application is, in part, prompted by desire to get more than is due from a special administration, it also shows such feeling on part of contestants and their counsel as that it would have been, at least, unwise to appoint any of the appellants; and (2) it is remarkable that parties who concede it to be the function of such administrator to be the tool of some who are interested in the estate should also urge that, if an appointment were proper, it should have been given to the son William, rather than to a disinterested person.
II. Meikle v. Hobson, 167 Iowa 666, 149 N.W. 865, decided in this court December 15, 1914, is called to our attention. We there decide that, since a party may be a witness in court, if such party fails to appear to an action in his own right, the other may, at his election, have a continuance at the cost of the delinquent, and an action may be dismissed if plaintiff fails to appear when the case is called for trial; that, in a suit brought by husband and wife against a third person, neither is in contempt for refusing to testify on a deposition sued out by the defendant. This is put on the ground, among others, that to permit it "would lend the full power of the court to a process for the discovery not only of the claims of the opposite party, but also the details of the evidence, so far as known to the plaintiff, upon which the case would depend, not regulated by the control which a court will give as to excluding testimony which is not competent or is forbidden." The only argument with which we are favored as to the applicability of this is the statement that "the very purpose in Judge Wade's mind in the cited case, as shown by this opinion of the court, is the same illegal scheme as in the case at bar, as he admits in his evidence as a witness in this case at bar when he testifies in support of the petition for appointment of Korab as special administrator."
The essence of our holding in Meikle's Case is that, since parties to a suit may be adequately dealt with in open court for failure or refusal to give proper testimony, the general deposition statute should not be resorted to in order to obtain their testimony, because the only possible use of such proceeding would be to obtain testimony, which the court itself would not admit. In its general aspect, it declares the self-evident postulate that the machinery of the law shall not be resorted to colorably, oppressively, nor to obtain what the law does not grant. The mere claim that the application at bar was made for some such purpose is not enough to invoke the application of this rule here, even though there be evidence to sustain the accusation. The statute provides (Code, Sec. 3299) that under given conditions a special administrator "may" be appointed. Whether the appointment was sought for improper purposes was one of the things to be presented to and considered by the court applied to. The language of the statute gives that court power to grant or deny. Had the court found that the application was for purposes such as appellants assert, it would have been its duty to use its discretion to deny the application. It follows that the granting of it involves finding as a fact that the application was a rightful one. If there be evidence upon which we would have sustained the court had the finding been to the contrary, the finding it did make is yet so sufficiently sustained by the evidence as that we may not interfere.
III. The Code, Sec. 3299, provides that:
"When, from any cause, general administration or probate of a will cannot be immediately granted, one or more special administrators may be appointed to collect and preserve the property of the deceased, and no appeal from such appointment shall prevent their proceeding in the discharge of their duties."
Under the express language of this statute, a special administrator may be appointed whenever the "probate of a will cannot be immediately granted." The appellees filed a contest upon the will which appellants offered for probate. The contest has not yet been tried. Notwithstanding the claim that as wills may be contested after probate, the statute (Sec. 3283, Code), that "after the will is produced the clerk shall open and read same, and a day shall be fixed by the court or clerk for proving it, which shall be during a term of court, and may be postponed from time to time in discretion of the court," does not provide, expressly at least, that probate shall be held up until after a contest is decided, we are constrained to hold that the bringing and pendency of this contest did produce a situation which prevented immediate probate. This is not only so of necessity, but the language of the Code prohibits the interpretation of appellants. A requirement that a day be fixed, with discretionary postponement from time to time, makes impossible an "immediate" grant of probate, and that probate once granted may be set aside has no bearing on whether probate may be granted before a pending contest is decided.
Additionally, it is urged: (1) that even if conditions existed which authorized appointment, the same was needless because of the character and financial responsibility of resistors, which of itself is a sufficient guard for whatsoever rights contestants have and sufficient warrant for permitting their opponents to have full control of the estate pending contest, to say nothing of the fact that appellants were both willing and able to furnish any bond required to safeguard the ultimate rights of appellees; (2) that though the instituting of a contest prevents the immediate grant of probate and therefore gives the court power to appoint a special administrator, it should, on application therefor, consider whether the contest is frivolous, and try out the very questions that must be determined on the hearing of the contest and may there be determined by a jury; and (3) that the evidence shows that the contest was purely captious and frivolous, instituted to harass by those who, under the will, have but a small interest in the estate.
The court, in passing upon an application for special administration, is called upon to decide whether it is rightful to grant it. The granting finds, inter alia, that the application is neither needless frivolous, captious nor vexatious. Such decision by the court may rest upon testimony that is relevant in a will contest. But this does not warrant a trial of the contest and a refusal to grant special administration, unless the court is satisfied that the contest should be sustained. The discretion given is not abused, because exercised when it is not absolutely clear that the obstacle to immediate probate is not purely colorable. This must be so for two reasons, at least. The contestant is entitled to a reasonable time to prepare for trial, and should not be denied purely interlocutory relief which may be necessary to preserve the subject of the contest, merely because he...
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