In re Estate of Durey

• Decision Date: 15 November 1932
• Docket Number: 41620
• Citation: 245 N.W. 236,215 Iowa 257
• Parties: IN RE ESTATE OF BERTIE H. DUREY. G. HAROLD DUNHAM, Administrator, Appellee, v. NANCY E. DUREY SCANLON et al., Appellants
• Court: Iowa Supreme Court

245 N.W. 236

215 Iowa 257

IN RE ESTATE OF BERTIE H. DUREY. G. HAROLD DUNHAM, Administrator, Appellee, v. NANCY E. DUREY SCANLON et al., Appellants

No. 41620

Supreme Court of Iowa, Des Moines

November 15, 1932

Appeal from Delaware District Court.--A. B. LOVEJOY, Judge.

Affirmed.

Carr & Carr, and Longley, Ransier & Frank, for appellee.

H. J Swift, for appellant Nancy E. Durey Scanlon.

E. A Johnson, for appellant Fidelity & Casualty Co.

WAGNER J. STEVENS, C. J., and FAVILLE, DE GRAFF, and ALBERT, JJ., concur.

OPINION

The opinion fully states the case.--Affirmed.

WAGNER J.

Bertie H. Durey, a resident of Delaware County, died testate September 18, 1928, and his will was duly admitted to probate. His widow, Nancy E. Durey (now Nancy E. Durey Scanlon), was nominated as executrix in the will and she was confirmed as such by the court. She duly qualified as said executrix on September 28, 1928, by taking the oath prescribed by law and by giving bond in the required amount of $ 10,000.00 with the defendant-corporation, Fidelity & Casualty Company of New York, as surety. The estate was heavily indebted, and the debts and charges of the estate are enough to practically absorb all of the property of said estate. By the terms of his will, the testator first provided for the payment of the debts and charges of his estate out of the property left by him at the time of his decease, and subject thereto, devised to each of his children--four in number--a life estate in certain tracts of real estate, with the remainder over in each tract to the children of the particular devisee, and made his widow the residuary beneficiary of his estate. The widow's election to take under the will has been made of record.

The decedent was indebted to his wife on a promissory note, and a claim based thereon has been filed with the clerk of the district court and duly allowed as a valid claim against said estate. The amount due upon said note, according to its terms, on January 29th, 1932, is $ 3,784.80.

On March 26th, 1929, the widow filed her petition, asking for an allowance for her support for the twelve-month period from and after the date of the death of the decedent; and on the same day, on an ex-parte hearing, the court granted an order allowing from the funds of said estate the sum of $ 1,200 for said purpose, and providing therein that "the said Nancy E. Durey, as executrix of said Estate, is hereby directed to pay the said sum ($ 1,200) out of the assets of said Estate as soon as the funds therefor can be made available." On the 29th day of April, 1929, the four children of the decedent filed with the clerk a motion to set aside the aforesaid order for widow's allowance. Subsequently, the children of the deceased filed an amendment to their motion to set aside the order for widow's allowance. Nancy E. Durey Scanlon, as widow and as executrix, entered her appearance in said proceeding, and trial of this matter was had to the court, and with reference to said matter, the court granted the following order:

"It is therefore Ordered, Adjudged and Decreed by the Court that the Order of this Court dated March 26th, 1929, allowing to Nancy E. Durey Scanlon, widow of the deceased, the sum of Twelve Hundred Dollars as widow's allowance be and the same hereby is set aside and cancelled; and it is further ordered, adjudged and decreed by the Court that Nancy E. Durey Scanlon, widow of the deceased, was and is entitled to a widow's allowance to be paid from and out of the assets of the estate in the sum of Six Hundred Dollars.

"It further appearing to the Court that said widow is also the duly qualified and acting Executrix of this estate, it is further adjudged by the Court that she be and hereby is required to account for all sums of money in excess of Six Hundred Dollars paid to herself as widow's allowance.

"To all of which all parties except."

It appears that much of the personal property belonging to the estate was sold. On March 26, 1929, the widow filed in the clerk's office her application, asking that she be allowed the proceeds of the sale of certain personal property in the amount of $ 2,331.52, which property was exempt to the testator. On April 20th, 1929, the children of the decedent filed a resistance to said application. This matter seems to have rested in abeyance until November 6th, 1930, when the widow and children entered into a written stipulation, agreeing that the court enter an order authorizing and directing the executrix to pay the surviving spouse said sum of $ 2,331.52, and an order of court in accordance with the stipulation was entered of record.

The record shows that the executrix paid to herself, as widow, the aforesaid widow's allowance of $ 1,200.00 and the proceeds of the sale of the exempt property in the sum of $ 2,331.52.

The record also shows that the executrix, without an order of court, paid from the personalty the sum of $ 50.00 for taxes on real estate devised to one of the children for life, with remainder over to the children of the first taker. The surety in its answer in the instant case admits that it is liable for said amount and that the same should be included in any judgment rendered against it. In their argument, the appellants say:

"Frankly it may be that the executrix is foreclosed from claiming such credit under the rule announced in the Estate of Dalton, 183 Iowa 1013, 168 N.W. 332."

With these admissions shown by the record, and in view of the argument of appellants, we will refrain from further discussion relative to said item.

On February 13, 1931, the Delaware County State Bank, a creditor of the estate, filed its application for order, in which it makes complaint in respect to the disposition of the funds as shown by a report of the executrix then filed, and praying that its claim be ordered paid within such reasonable time as the court might fix. On March 20, 1931, the court entered of record an order establishing the claim of said creditor and the claims of other creditors, as claims of the third class, and directed the executrix to make payment of all of the same within ninety days from that date.

Thereafter, the Delaware County State Bank filed its application, asking for judgment against the executrix and her surety for the amount due upon its claim. The court entered of record an order fixing the time for the hearing upon said application and prescribing the notice to be served upon the interested parties. All parties were served with notice in accordance with said order. The surety company filed its answer to the application of the Delaware County State Bank, alleging that, as shown by the report of the executrix then on file, there were no assets belonging to said estate in her hands, not accounted for, with which to pay the claim of said claimant, and prayed that the application of said claimant be denied. The executrix filed her answer to the application of the Delaware County State Bank, alleging therein the probability that all assets of the estate, both real and personal, were insufficient to pay all the claims allowed, and that the court had appointed a referee to make an accounting, and prayed that the application for judgment against her and the surety on her bond be denied.

Thereafter, the executrix resigned, and G. Harold Dunham was appointed administrator with the will annexed of said estate, and he duly qualified as such. On September 30, 1931, the administrator with the will annexed filed an application for order, alleging therein that the executrix had resigned; that she had in her possession property belonging to the estate in the sum of not less than $ 8,648.01, for which she had wholly failed to account, and prayed that she be required to appear at such time and upon such notice as the court might fix, to show cause why the court should not order her to pay to the administrator with the will annexed the sum of money alleged to be in her possession, with any other sums that the court might find due. The court entered of record an order requiring the executrix to appear on the 5th day of October, 1931, to show cause why the prayer of the administrator with the will annexed should not be granted; and the executrix was accordingly duly served with notice. Thereafter, the executrix filed what is denominated her final report, which shows in detail the receipts and disbursements claimed to have been made by her. The disbursements include the amounts, hereinbefore mentioned, paid to herself as widow's allowance, the amount paid to herself as the proceeds of the exempt personal property, and also the $ 50.00 item paid on taxes. To this final report, objections were filed by the claimant, Delaware County State Bank, and by the administrator with the will annexed, in which they object to her claimed right to credit for the amount paid to herself in excess of $ 600.00 for widow's allowance, to the payment to herself of the proceeds of the exempt property in the sum of $ 2,331.52, and to the amount of $ 50.00 paid by her on taxes.

As the result of a hearing on said matter, the court, on November 25, 1931, adjudged the amount due from the executrix to the administrator with the will annexed, and for which she as executrix should account, to be $ 9,612.55. In arriving at this amount, the court disallowed her claimed right to take credit for the aforesaid amounts. The amounts of the receipts of and the disbursements by the executrix were agreed upon by the parties. There was a stipulation among the parties to said litigation at that time that no steps then taken should be held to estop the executrix or the surety upon her bond from thereafter asserting any legal defense they might have to the disallowance of the claims of the executrix to credit...